For years employers have been advised that if they apply their non-discriminatory and legitimate company policies and practices across the board, without exception, it will generally be much easier to defeat challenges to those practices. A recent case in the U.S. Court of Appeals for the Eighth Circuit, Norman v. Union Pac. R.R. Co. (Nebraska), highlights this point. In that case, the employer had a standard policy that required all employees seeking to return to work from a long-term disability leave to submit a “return to work release” prior to resuming employment. The plaintiff, an African American woman sued the company under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act of 1990, claiming that she was terminated because of her race, gender and her disability. The plaintiff argued that her termination was discriminatory because although she did not submit a return to work release, the company found a suitable position in the company for a similarly situated Caucasian male employee, while he was on leave, although he had a poor disciplinary history and inferior annual evaluations.

The court affirmed the lower court’s dismissal of the case finding that the employees were not similarly situated because the Caucasian employee submitted the required release while plaintiff did not. Therefore, the discrepancy in how the employees were treated had nothing to do with disability, race or gender but was a result of plaintiff’s non-compliance with the company’s rules.

This reaffirms the longstanding advice most employers have heard time and time again, from capable counsel–do not play favorites. Apply your non-discriminatory policies and practices equally across the board and you will be in a good position to defend against actions challenging your business policies and practices. Caveat: See Article on Disparate Impact Claims.