Hey Employers – Let the Punishment Fit the Crime

By Fiona Ong - Shawe Rosenthal LLP

July 24, 2024

The Olympics are coming! And there were two interesting Olympic-related articles in the New York Times on Tuesday involving star competitors who “withdrew” (voluntarily?) from their countries’ teams based on some bad behavior. One involved a gold-medal winning equestrienne who was filmed repeatedly whipping a horse, which she characterized as an “error in judgment.” (Um, hitting a horse 24 times in less than a minute – People Magazine had more of the salacious details – seems rather more than a simple error in judgment…). Her decision not to compete makes sense. The other involved the teenaged captain of the Japanese women’s gymnastics team who committed the unspeakable crime of … smoking a cigarette and drinking alcohol. Twice. I’ve gotta say, forcing her to withdraw from the Olympics over common teenaged conduct (even if it is illegal under Japanese law for those under age 20) seems excessively harsh (and undoubtedly devastating to a young woman who likely has spent her entire life training for this opportunity). And there’s a lesson there for employers about imposing discipline.

For most non-union employers, there’s a pretty wide latitude for employee discipline – up to and including termination. (Unionized employers are more tightly restricted in their discipline of employees who are union members). When we prepare discipline or corrective action policies for employers, we always include a statement that the level of discipline imposed is at the discretion of the employer. But we also advise the employer that they should be consistent in how they choose to discipline for similar misconduct, as inconsistencies can lead to claims of discrimination.

But another consideration for employers is not so much legal as emotional – and that is proportionality. Employers can certain choose to fire at-will employees (who can be terminated for any or even no reason, as long as it is not an illegal reason, like discrimination or retaliation for whistleblowing) for minor infractions – but should they? Because the concept of due process is deeply enshrined in our American psyche – even though it doesn’t actually apply in the private (non-union) workplace. And while the employer is certainly on strong legal grounds to take whatever actions they choose (again, as long as it’s not for an illegal reason), that may not play out so well in front of a jury (and sometimes even the Equal Employment Opportunity Commission, particularly under a progressive Democratic administration). Because when an employer’s decision doesn’t seem fair, employees/juries/the EEOC are quick to assume that the real reason for the decision is a malicious and likely illegal one.

So, when faced with a disciplinary matter, here’s some advice for employers:

•    Get the employee’s side of the story before making a decision. Even if you think there is nothing they can say that would make a difference. This goes directly to a jury’s sense of fair play. (And you never know, sometimes they might actually offer an explanation that you didn’t expect).
•    Make sure that whatever disciplinary decision you make is consistent with how you’ve treated similar infractions in the past. Consistency is key!
•    But the circumstances do matter. For example, you could impose more serious discipline on one employee than another for similar misconduct if one employee has a history of misconduct while the other does not. Or if one employee is a manager who can be held to a higher standard of conduct than a non-manager. Or if one employee’s actions result in greater harm than the same actions by another employee. Or if one employee lied or tried to cover up their misconduct while the other accepted responsibility. Or, or, or … Just make sure the reason for the difference in treatment is legitimate and reasonable.
•    And ensure that the punishment fits the crime. Again, juries often focus more on whether the treatment was fair than whether it was legal. Just because you can terminate doesn’t mean you always should.

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