In the May 2009 San Antonio appeals case of Cantu v. Frito-Lay, Inc., the employer beat a discrimination charge by a former employee because the company kept good records of the kinds of disciplinary action applied to employee misconduct and the reasons such actions were taken.
I often advise employers to keep a running log of each time the company issues a written warning, a suspension or a termination so that it is clear whether employees are being treated equally for similar misbehaviors. The Cantu case provides a good example of the importance of that information.
Kirk Cantu worked as a route salesman for Frito-Lay. He stocked bags of chips in HEB grocery stores. He was seen by a store employee tampering with the “sell by” dates on bags of chips that were later found to be stale. He was banned from servicing any HEB stores at the insistence of HEB, which led to his termination from Frito-Lay.
Cantu sued for gender discrimination, comparing his situation to that of Sandra Casso, a route salesman for Frito-Lay who serviced one HEB store. Casso was related to the store manager and told the store personnel that the manager was pregnant. The store manager asked that Casso be reassigned to another store, but did not want Casso reprimanded. Frito-Lay allowed Casso to bid on another route rather than terminating her employment.
Cantu claimed that he was treated differently than a similarly-situated female who had also been barred from servicing an HEB account, and therefore argued that he had been discriminated against on the basis of his age and gender (Cantu was 53 and Casso was under 40).
The Texas Supreme Court has previously ruled that to be a “similarly-situated” employee for comparison purposes in discrimination cases, the circumstances must be comparable in all material respects, including similar standards, supervisors and conduct. Therefore, the court said that not only does it have to examine the ultimate disciplinary action (both barred from servicing an account, yet one was fired while the other one wasn’t) but also the underlying circumstances.
In other words, to prove discrimination because of disparate disciplinary measures, the plaintiff has to prove that the misconduct he engaged in was nearly identical to that engaged in by a female that the company retained. Cantu was unable to demonstrate that Casso’s misconduct was nearly as serious as his, and therefore he was unable to demonstrate discrimination.
How does an employer assure that it can successfully defend such cases? By making and keeping very good records of the reasons that each employee was fired (or not fired) for misconduct and then showing the court that the employer has been consistent in applying disciplinary measures across all ages, races, genders, etc.
That requires a good log that each manager can access and review before deciding what disciplinary measures to take in an individual situation. If the log were to show that three people before were fired for lying on an application, then the manager would know that lying on an application is a firing offense.
However if the log showed that only the employees who lied about relevant past employment (by claiming experience they didn’t really have) had been fired, while those who lied about schooling (by claiming they had a high school diploma when they only had a GED) had not, the manager will have direction about which offenses are considered serious firing offenses and which are not as serious.
You can’t rely on all of your managers to know of or remember what disciplinary action was taken with each employee, or even the circumstances surrounding the misconduct. But it is easy enough to create a running log that each of them can access and add to as part of the normal disciplinary process. This simple step could assure a win if the company battles a claim of discrimination.