Clear and specific policies are often touted as the key to well-oiled workplaces and minimal litigation. However, even the most polished policies are futile without consistent application. Two recent lawsuits are prime examples of this principle.
Bad hair day
A situation that led to a violation of the National Labor Relations Act started with an employee's bad haircut. The crummy coiffure prompted the female worker to begin wearing a hat to work. After the employer, a long-term care facility, informed her that this was against the organization's dress code, the employee refused to remove the hat, and instead went home for the day. The following day, the employee was issued a written warning for insubordination.
On its face, this may seem like a perfectly acceptable application of policy. However, before she was disciplined, the employee had pointed out that several other employees regularly wore hats at work. After the discipline, the employee began monitoring other employees' dress habits. Using her cell phone, she took pictures of employee dress code violations -- two employees were aware that their photographs were being taken, two were not.
She also engaged co-workers in conversations about the inconsistent application of the company's dress code.
Shortly thereafter, the employee was terminated for taking pictures of co-workers "without their permission."
After the employee filed a complaint with the National Labor Relations Board, an administrative law judge ruled she had been terminated for investigating whether the employer was applying its policy consistently. The judge deemed this was protected concerted activity under the NLRA -- the employee was discussing terms and conditions of employment with co-workers.
The company appealed, but the Fourth Circuit Court of Appeals agreed with the lower court, questioning the reason for termination and indicating the employee had been engaged in protected activity. The court pointed out that other employees had taken photos of one another at work before (both with and without permission), and never had this previously resulted in termination.
This case began with the inconsistent application of a dress code policy. Additionally, the Fourth Circuit viewed the inconsistent application of the employer's "photography policy" as a subterfuge for terminating the employee, ruling the termination actually was a reaction to the employee exercising her rights under the NLRA. Had policies been implemented consistently, this employer probably wouldn't have found itself in court. National Labor Relations Board v. White Oak Manor, Fourth Circuit, No. 10-2122 (Oct. 28, 2011)
Possible ADA violation
In another recent case, an employee informed her employer that she would need to take time off for surgery. Shortly thereafter, the employee was terminated for poor performance.
Though an employee's medical condition does not absolutely protect the person from being terminated for poor performance, the employee in this case and the Equal Employment Opportunity Commission (EEOC) alleged she was terminated because of her medical condition, in violation of the Americans with Disabilities Act (ADA).
The EEOC pointed out that, unlike this employee, others with performance problems were placed on written performance improvement plans before being terminated. The EEOC filed this case with the U.S. District Court for the District of New Hampshire, charging the company treated the individual more harshly than it treated other employees with performance problems.
By applying policies inconsistently, employers make it much harder on themselves to prove that their actions were not discriminatory or otherwise illegal. In fact, inconsistent policy enforcement can create the appearance of discrimination, even in cases where discriminatory motives weren't present.
Katie Loehrke is an associate editor at J. J. Keller & Associates, Inc., a compliance resource firm, which offers products and services to address the responsibilities held by human resources and corporate professionals.