How to Win a Disparate Treatment Case

One of the most powerful arguments a union can make against unfair discipline is disparate treatment. Learn how to win a disparate treatment case and fight an unfair suspension or discharge.

Disparate treatment arises when one employee is given a significantly more serious penalty than others who committed the same infraction.

Disparate treatment violates Just Cause because it indicates the presence of favoritism or discrimination. Labor arbitrators frequently reduce a grievant’s penalty to the lowest level given for the offense.

Here are some points you may find useful in preparing your next disparate treatment case:

  • The disparate treatment defense works best for a grievant who was suspended or discharged. It does not work well in the case of oral or written warnings.

  • Disparate treatment may be raised even if only one other employee (called a “comparator”) was given a significantly lesser penalty –  either recently or in the past.

  • The best comparator is an employee within the bargaining unit. The union can also compare employees in other units or even in management. When a rule – for example a ban on intoxication – is applicable within and without the bargaining unit, an employer is expected to apply substantially similar penalties.

  • Identifying a comparator is not the end of the story. The union must be able to overcome contentions by the employer that a “valid distinction” justified the difference in treatment. Valid basis includes substantially more years of service or a clearly superior disciplinary record. A lesser penalty may also be justified if the worker showed remorse and took responsibility for his or her actions.

  • If a comparator’s discipline was modified during the grievance process, the union will need to review the settlement papers. If they say the case was resolved “without prejudice or precedence,” the union may not be able to cite the  matter when defending others.

  • The union should demand the personnel files and disciplinary records of possible comparators and, if possible, conduct interviews. The employer should be asked to specify in writing any and all reasons why the comparator was given a lesser penalty than the grievant.

For more on this topic, read Just Cause: A Union Guide to Winning Disciplinary Cases by labor lawyer Robert M. Schwartz. Available for $20 on the Work Rights Press website.

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