The virtue of consistency in defending against a claim of discrimination

Many unflattering things have been said about the trait of consistency.

 

George Bernard Shaw asserted that consistency was the enemy of enterprise.  Worse, Ralph Waldo Emerson pronounced that consistency was the hobgoblin of little minds.   The cruelest cut of all:  Aldous Huxley's claim that the only completely consistent people are the dead.   

 

But, if you ask the Texas Department of Criminal Justice, being consistent is a saving grace when defending oneself against a claim of discrimination.

 

A few years ago, the TDCJ believed that employee Phyllis Shanklin was abusing her paid sick leave, so when she asked for FMLA time to recuperate from a back injury, they asked for documentation from her treating physician.  When they didn't receive it, Shanklin was fired.  In response to her termination, Shanklin sued the TDCJ, saying that she was fired due to racial discrimination.

 

Court rulings have determined that in order to prove an allegation of disparate treatment based on race, one must show that there are situations where individuals were treated more harshly than others of another race.  This means that employers must treat employees with consistency.

  

The TDCJ was able to demonstrate that they were consistent in the manner in which they applied corrective measures.

 

On the other hand, Shanklin conceded that she had no evidence that her employer had made its decisions on any discriminatory basis.  She could not point to a single employee of another race or color who wasn’t fired for responding to a supervisor's request in the same manner and in the same situation.

 

It did not help her case that one of the people that approved of her punishment was Warden Diana Oliphant, who is also African-American.

 

Shanklin's claim of discrimination was dismissed before trial; the jury rendered a verdict against her on the remaining counts.  She lost her appeal.

 

Consistency may not be artistic, but, when dealing with employees, consistency may be the foundation of judicial victory.

 

As was once said by Sir Francis Bacon, "Look to make your course regular, that men may know beforehand what they may expect."

 

When an employer's course is regular - when they act with consistency - judges and juries will respond accordingly. 

 

Disclaimer:

This article was published to provide information about the law, designed to educate readers about issues in which they may have an interest. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure the information provided is accurate and useful, I recommend you consult a lawyer if you want professional assurance that the information, and your interpretation of it, is appropriate to your particular situation.