In a recent opinion, the Tenth District Court of Appeals emphasized again how important it is for employers to make sure that their company policies and disciplinary actions are applied consistently and fairly to all employees. Bowditch v. Mettler Toledo International, Inc. (Ohio App 10th Dist. 2013), 2013-Ohio-4206. In the Bowditch case, an employee in his 50’s was terminated when it was discovered he was using a company computer, as well as the company’s internet connection, to view and transmit pornographic materials to coworkers and people outside the company. Mr. Bowditch then sued for age discrimination. The trial court granted summary judgment for the employer. However, on appeal, the Tenth District Court of Appeals reversed the judgment and found that Mr. Bowditch had provided sufficient evidence to create a material issue of fact. Specifically, there was an issue of fact regarding whether similarly situated employees who had engaged in similar, if not identical, misconduct had not been terminated. Importantly, even though the other individual who had misused the internet was over 40, the Court found there was a big enough difference in age (six years) to allow the case to go to a jury on the claim of age discrimination.
Although the employer also argued that the violations that had been committed by the younger employee were not as egregious and did not involve materials that were as offensive as those solicited and distributed by Mr. Bowditch, the Court ruled that the severity of the rule violation was not sufficient to differentiate the two cases and cited the similarity in the violations themselves as the reason for overturning the summary judgment.
It is important to note that when you are dealing with employees that are over the age of 40 in your disciplinary actions, you must make sure that you apply your policies consistently and fairly. Any differentiation in age can now be the basis for a claim of age discrimination. While the employer in this case may eventually be successful at trial, it will now have to incur tens of thousands of dollars in legal fees to fight this claim.