Isn’t Consistency Great?

27 April 2015 Labor & Employment Law Perspectives Blog

There is probably no more hard and fast rule, or favorite word of human resource professionals, than “consistency.” And we love consistency, right? It allows you to say “no” to an employee who wants something outside of the norm. It gives you a guilt-free reason to evenly apply policies, even when the result may otherwise seem to be unfair, disproportionate or even unwarranted. It makes responding to U.S. Equal Employment Opportunity Commission (EEOC) charges easier when you can show a clear pattern of how employers apply or enforce policies. In short, consistency makes life easier. Or does it?

While human resource professionals (and their counsel) do and should value consistency, trends in dealing with individual employee situations make it clear that consistent application of certain policies cannot always be the default. For instance, consider the case of two employees who need reasonable accommodation and are otherwise protected by the Americans with Disabilities Act (ADA). As in the recent Sixth Circuit decision we discussed last week, an employee seeks telecommuting as the reasonable accommodation. For some jobs, the court held, physical presence at the worksite may be an essential function of the job. For other positions it is not. How then does an employer consistently enforce a single policy on telecommuting? What about consistently denying additional leave to employees who are unable to return to work after 12 weeks of Family and Medical Leave Act (FMLA) leave? While doing so may be allowed under the FMLA, the ADA requires an individual analysis. Can the employer then set a maximum leave time above the FMLA 12 week leave? Would that be consistent – and fair? Probably not. Again, an individual inquiry is required. Finally, how does an employer consistently apply policies with regard to time spent in religious observance when there is so much variation in what individual faiths or religions require?

The truth is, the need for periodic “inconsistency” — review of individual circumstances rather than rote application of a rigid policy — applies in situations beyond those discrimination laws which require accommodation. What about applying policies based on different situations existing among employees? The most obvious example is attendance. Even assuming the individuals miss the same amount of work, employers are much more likely to require strict adherence in attending for an employee still in a probationary period as compared to an employee with 20 years of service.

None of this is meant to suggest consistency should be completely disregarded. It is and will always be one of the best defenses to any employment claim. But, as employment laws provide protection in more and more areas of the workplace or to different employees, employers must be sure to always evaluate their obligations on a case-by-case, and circumstance-by-circumstance, basis. In other words, one size will not always fit all.

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