Inconsistent or Arbitrary Use of Policies

This kind of activity is a huge red-flag for discrimination. When an employer displays inconsistent or arbitrary use of policies, it means they are not treating all employees fairly and there is ample opportunity for abuse to occur.

What Does It Mean?

One of the most obvious reasons to create a policy for managing employee performance is to make sure everyone – bosses, managers, staff – understands what is expected and what the rules are. Having this kind of structure can reduce stress, anxiety, worry and also reduce the need to punish people for bad behavior or poor performance.

The trouble comes in when bosses and managers act inconsistently or in an arbitrary manner. When bosses or managers play favorites, pick on (or encourage the mistreatment of) certain employees or types of employees, and when the “rules” apply to some people but not others, there is a tremendous opportunity for people to be hurt or harassed or abused or suffer discrimination.

What Are Some Examples of This?

In the case of Pierce vs. President & Fellows of Harvard College, a gentleman who was employed as a police officer on campus was subjected to a variety of prejudiced comments and treatment. In one instance, he was late for work, following attendance of a wake for a co-worker’s family member. A number of his other colleagues were late as well. However, the supervisor decided to make him and him alone a target of disciplinary action. Additional patterns of arbitrary behavior emerged, and it was clear to courts that Mr. Pierce was a victim of discrimination, and that any reference to Mr. Pierce’s violations of policy were a pre-text for his mistreatment.

In the case of Trs. of Health and Hosp. of the City of Boston, Inc. v. MCAD, a number of employees were going to be laid off. Certain employees were given no advance warning of the layoffs by the company, and when they were informed, they were immediately taken to their desks and made to pack up their belongings while being monitored by a company supervisor. In several instances, the company monitor took possession of an employee’s belongings and searched them, in full view of co-workers. In another instance, a company supervisor spoke harshly and demeaningly to one of the laid-off employees in the presence of co-workers. In strong contrast to this treatmemt, a male, white employee who was also being laid off was warned in advance and was given preferential and deferential treatment regarding his layoff notification and subsequent exit process. The employer gave a reason for this harsh treatment of the non-white women: they feared there would be vandalism or other bad behavior if they gave them advance warning and/or let them collect their belongings with out direct supervision. The court found that these reasons were entirely a pre-text – there was no non-discriminatory reason to believe this, and the policy was enacted arbitrarily and inconsistently.

Go Back To The List of Pre-Texts


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