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The EEOC’s Inconsistency on Consistency?
Posted 04.04.11
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Jonathan A. Segal
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In terms of avoiding discrimination claims, we all have heard (and sometimes preached) the importance of consistency.  Treat people the same and you minimize the risk of being sued for discrimination (unless the employee argues they were not similarly situated so that treating them similarly was discriminatory).

One way we can maximize consistency is by having clear rules.  Clear rules remove the discretion (and sometimes the thinking) that can create the apparent inconsistency that may serve as the fodder for individual discrimination rules.

But per se rules also can create something else:  class actions.  Indeed, the EEOC  is attacking per se rules as  disparate treatment or creating adverse impact in numerous settings.  Here are but two examples:

Some employers with leave of absence policies terminate employees when they reach a certain number of weeks’ leave.  This promotes consistency but the EEOC sees “rigidity” and “inflexibility” and demands that employers determine whether additional leave may be a reasonable accommodation under the circumstances.  Of course, this individualized determination will result in apparent inconsistencies that will invite individual discrimination claims.

Some employers have per se bars on hiring candidates with credit scores below a certain number. Again, the consistency avoids individual discrimination claims but the EEOC may attack, claiming adverse impact based on race or ethnicity, demanding effectively that the employer take a more holistic evaluation (as required by some state laws).  But, again, a holistic approach will result in more individual discrimination claims based on apparent inconsistencies.

The bottom line:  When we are inconsistent, we may be accused of discrimination. When we are consistent, we may be accused of being rigid, inflexible or discriminatory.

Ralph Waldo Emerson once wrote, “foolish consistency is the hobgoblin of a little mind.”  We can update Emerson by saying consistent consistency is the hobgoblin of an uninformed mind.

We cannot avoid risk. We can only manage it.

In a very real sense, in this litigious society, we need to pick our plaintiff.  So we need to replace the mantra “consistency, consistency, consistency” with “think, think, think.”

This blog should not be construed as legal advice or as pertaining to specific factual situations.

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About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .