How Your Employer’s Inconsistent Application of Discipline Can Strengthen Your Retaliation Case

As children, many of us decried what we saw as inconsistent treatment of ourselves versus peers or siblings with the oft-used refrain “that’s not fair!” For adults, when inconsistent treatment in the workplace happens because of your race, sex, nationality, religion, sexual orientation, etc., then that often is illegal discrimination. When it happens because you refused a decision-maker's request for sex, that’s sexual harassment. And when it happens because you engaged in protected activity as part of opposing illegal conduct like discrimination or harassment, that can amount to illegal retaliation. If you’ve encountered that last one then, with representation from a skilled New Jersey workplace retaliation lawyer, you may have a winning retaliation case.

A recent retaliation case from outside New Jersey is a very good illustration of how an employer’s double standards and inconsistent application of discipline can work to undermine its defense.

The worker in the case was an employee at an aluminum manufacturing facility in West Virginia. In 2013, management at the facility changed the overtime policy. Under the new policy, workers interested in working overtime shifts had to sign up on a board.

Many of the workers who opposed the new policy referred to the sign-up board by a vulgar two-word nickname. Jack, one of the workers who opposed the new overtime policy, even wrote that two-word phrase on the sign-up board. After he did that, the employer first suspended then ultimately fired him, ostensibly for his profane and offensive conduct.

In a retaliation case, several factual elements must exist for a worker to achieve success. The worker must have engaged in the protected activity of which the employer was aware. The employer must have taken adverse action against that employee, and the protected activity must have been the cause of that adverse action.

In Jack’s case, his action amounted to protected activity. It’s a reminder that not all protected activities are formal complaints to HR or a regulatory agency. Sometimes, something as simple as writing a disparaging nickname can be a form of protest against a change in an employer’s employment practices and therefore constitute a protected activity.

The Employer ‘Regularly Tolerated’ the Ostensibly Violative Phrase

The employer’s contention was that it acted in response to the vulgarity, not to the fact that the phrase disparaged a new company practice. That argument had a major problem, though. The evidence in Jack’s case demonstrated that the employer “regularly tolerated” workers’ use of the profane phrase and only took disciplinary action when Jack wrote the words on the sign-up board.

If the employer had disciplined everyone who said or wrote the phrase, then it might have had a valid argument that it acted with no retaliatory animus. However, the fact that the employer only applied its rules against vulgarity to Jack (after Jack had engaged in a protected form of protest) severely undermined its position that the adverse actions were motivated by rules enforcement, not impermissible retaliation.

Jack’s case was one involving the National Labor Relations Act, not Title VII or the New Jersey Law Against Discrimination, but the principles of law are largely the same. If your case is one where you engaged in protected activity (such as opposing discrimination or harassment or assisting someone else in their opposition to discrimination or harassment) and your employer took adverse action against you – allegedly as the result of a dispassionate application of its workplace rules and requirements – then proof that the employer applied those rules inconsistently can go a long way to debunking your employer’s position and strengthening your argument that the employer’s true motivation was illegal retaliation.

For example, say that you testified in a coworker’s race discrimination action, providing a statement that supported your coworker. Shortly after doing so, you incurred workplace discipline for “attendance policy violations.” If you can develop proof that other colleagues with the same number of attendance violations received no discipline at all, then that evidence could support the inference that the true motivator was retaliation, not the employer’s stated, legitimate reason.

Your employer cannot use a rule that never applied to anyone else to discipline you right after you complained about illegal actions or supported others in their complaints. Proving that the employer used its policies and disciplinary practices blatantly inconsistently can reveal that its stated, legitimate reasons were actually just pretexted for illegal retaliation. The experienced New Jersey employment retaliation attorneys at Phillips & Associates are here to help. Our attorneys have the knowledge, experience, and diligence to help workers maximize their positive results. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation.

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