Jan 27



Man gropes female colleague; man sues their employer.  That’s the basic story line from a recent backsidescase out of Pennsylvania, where an EMT named Mitchell was accused by a colleague (Witt) of touching her in seriously inappropriate ways (grabbing her buttocks and getting dangerously close to even more private areas). Upon determining that Witt’s claim had merit, the city of Pittsburgh, for which they both worked, fired Mitchell. That was the right course of action . . . wasn’t it? Yes and no.

Here’s the problem: Mitchell was a 61 year-old black man who claimed disparate treatment in this firing, pointing to a situation where two paramedics, who were younger and white, had each struck a patient and received suspension (not termination) as a result. According to the U.S. District Court for the Western District of Pennsylvania, striking a patient is of “comparable seriousness” to groping a co-worker. So, in being only suspended (not fired), the white employees were treated more favorably than Mitchell, leading to employer liability for disparate treatment based upon membership in a protected class.

Moral of the story: Equally Punish All Employees Who Seriously Misbehave at Work – Probably by Firing Them (Who Wants These Guys Around, Anyway?)

Was the city in a no-win situation or are there things it could have done to protect itself? Both.

By the time Mitchell’s situation came to light, the city had already let some comparably bad acts by younger white employees go relatively unpunished. So, by that time, it was in somewhat of a no-win situation. Had it not acted on Witt’s claims against Mitchell, Witt may have had a case against the city. But, by acting on her claims the way it did (after not having acted on comparably serious claims against others), it was Mitchell who had the case.

The take-away from this case is to treat employees the same with regard to not only hiring and advancement, but adverse employment actions as well. And, the simplest way to avoid being in a no-win situation like this is to not allow any employees to get away with such bad acts. That way, you’re sure you are them the same regardless of their membership in any racial, gender, age or other protected classification. These demographic characteristics are completely irrelevant to an applicant’s or employee’s ability to do the job, so I can’t think of a logical reason you would want to use these characteristics in any hiring, advancement, firing, or other employment-related decision in any event.

fine print

Covering my bases: There is no legal advice contained in this post. Legal advice entails applying the law to specific facts. I don’t know what your facts are and any resemblance to them here is purely coincidental. Instead, this post is meant to provide general information, which may or may not be complete and accurate. If you need legal guidance, please feel free to contact me using the contact information on my firm’s web site – www.westbendlaw.com.