It is often said that consistent application of an employer’s work rules is one of the best ways to avoid liability for discrimination claims. Doing so can help to rebut the allegation that an individual has been subjected to disparate treatment because of race, sex, or other protected classification. However, what if for example a female employee is terminated for violating a certain work rule, and evidence is offered to show that a male employee engaged in a similar violation and only received a disciplinary warning. Should the employer automatically be held liable for sex discrimination? The United States Court of Appeals for the Fourth Circuit recently addressed this question in the case of Balderson v Lincare Inc., 62 F.4th 156 (4th Cir. 2023). On March 15, 2023, the court held that the employer could not be held liable under Title VII of the Civil Rights Act in the absence of evidence that the female plaintiff was selected for discharge because of her sex – even though an alleged comparator male employee received less severe disciplinary treatment.
The plaintiff was employed by Lincare as a sales representative and was a top performer. Her job duties included the review of sales orders for accuracy and completeness, to make sure the medical equipment being ordered by the customer would be covered by insurance. During an audit, the company discovered that Balderson had been instructing physicians to insert boilerplate or “template” language (which she had written) into the order forms to establish that the medical equipment being ordered was medically necessary. Balderson acknowledged that she had instructed physicians to include the template language so that the medical equipment orders would get approved. The company’s management team involved with the investigation concluded that Balderson’s activities violated the company’s compliance program. Those managers, all of whom are female, decided to terminate Balderson for that violation.
During the investigation, Lincare also discovered that a male employee had engaged in similar activities – specifically that he had provided several examples of “leading” statements that the physicians could use to support their equipment orders. However, the same managers who terminated Balderson decided to issue the male employee a final written warning, based on the conclusion that his violation did not rise to the magnitude of Balderson’s violation. Lincare subsequently hired a female candidate to fill Balderson’s sales representative position.
In a bench trial, the district court found that Balderson established a prima facie case of sex discrimination because the male employee received lesser discipline than Balderson, and that his conduct was “nearly indistinguishable” to that of Balderson. Based on this evidence, the court concluded that Lincare’s explanation for why it terminated Balderson and not the male comparator was “not credible.” From these conclusions, the court inferred that Balderson was discharged based on her sex.
Lincare appealed the case to the Fourth Circuit Court of Appeals. The court first noted that the lower court had “clearly erred” in concluding that Balderson and the alleged comparator’s conduct was “nearly indistinguishable.” The court cited evidence in the record which indicated that the conduct was “similar” but not the same. But the Fourth Circuit stressed that even if the lower court was convinced that the conduct was “so similar that fairness required [Balderson and the comparator] to receive the same discipline, the question for the court was not whether Lincare had made a good, equitable, or even fair decision. It was instead whether the actual reason for their disparate discipline was that Balderson was a woman and [the comparator] was a man.”
The court emphasized that “it is not enough to disbelieve [Lincare’s] explanation for its actions.” Rather, in order to establish a claim of sex discrimination under Title VII, Balderson still had to prove that she was fired because of her sex. Here, Balderson offered no evidence of any gender-related comments directed towards her, the decision-makers regarding her termination were female, and Balderson admitted that those decision-makers did not engage in any conduct which led her to believe that they had treated her differently because of her sex. In view of the case facts, the Fourth Circuit held that Balderson failed to prove that her discharge violated Title VII.
While this case emphasizes the employee’s ultimate burden to prove discriminatory motive in Title VII cases, employers should not assume that unequal disciplinary treatment of employees is without risk. The consistent application of work rules and policies is not just a good business practice. It also helps to demonstrate that the employer’s disciplinary actions are both legitimate and non-discriminatory, in the event that an action is challenged. Of course, disciplinary decisions should be made in view of the particular circumstances of each case, and sometimes those circumstances warrant different treatment. But the employer must be prepared to explain and defend such decisions based on non-discriminatory business considerations and judgment.
