There is a reason every human resources expert preaches consistency: to prove employment discrimination where there is no smoking gun evidence of discriminatory intent, the plaintiff must generally show that he or she was treated differently from similarly situated employees. Every employer knows, however, that, given the unlimited contextual variations in the workplace, consistency is more difficult to practice than to preach. A decision issued by the Sixth Circuit Court of Appeals earlier this month reminds employers that they are free to make distinctions among employees on bases not prohibited by law, as long as those distinctions are reasonably justified.
The facts of Martinez v. Cracker Barrel Old Country Store, Inc. are straightforward: a Caucasian manager, Martinez, was overheard referring to a Michigan public assistance program, “Bridge Card,” as the “ghetto card.” A group of Caucasian managers investigated and learned in the course of the investigation that Martinez had made other inappropriate comments at work about, e.g. teen pregnancy and the Bridge Card program. The investigation also revealed that other retail non-supervisory employees, all African-American, had used inappropriate racial terms at work, including “ghetto card.” Cracker Barrel ultimately terminated Martinez while requiring only policy reviews for the other employees.
Martinez did not deny the comment or that it signified racial animus, but argued that Cracker Barrel engaged in “reverse discrimination” when it singled her out for termination. In support, Martinez offered what she characterized as comparator evidence, that an assistant manager, who is African American, also used the term “ghetto card,” yet was not terminated.
Reviewing the district court’s grant of summary judgment for Cracker Barrel, the Court of Appeals noted that, even if Cracker Barrel was aware or believed the assistant manager had made the racial comment, Martinez’s conduct—which included other offensive remarks—was more egregious. But even if this assistant manager engaged in the same conduct, the Court said, Cracker Barrel could “reasonably justify” holding Martinez to a more stringent standard of conduct because of her role as manager. The Court therefore affirmed the district court’s ruling, sparing Cracker Barrel a jury trial over whether the termination was really motivated by Martinez’s race.
Typically, employers strive for consistency by tailoring the punishment to the offense. However, it is not always necessary to mete out exactly the same punishment for employees guilty of the same infraction in the name of consistency. The key is to treat similarly situated employees in the same manner and to have a reasonable (and well documented) justification for any distinctions drawn. While many a battle has been waged over how closely two employees must resemble each other to be “similarly situated,” Martinez teaches that employers will generally have a reasonable basis for holding management to a higher standard than supervisory or line level employees.
If you have questions about legal risk in the context of performance management or employee discipline, please contact Katy Rand at krand@pierceatwood.com or (207) 791-1267, or any member of Pierce Atwood LLP’s Employment Practice Group.
