Legal Eagle Eye Newsletter for the Nursing Profession(5)11 Nov 97  PDF Version 

   Quick Summary: It would seem proper to impose strict discipline on a patient-care worker caught sleeping on duty.

   However, the courts must look carefully at adverse personnel action against a minority employee, to uphold the anti-discrimination laws.   A healthcare facility must apply its disciplinary policies toward employees with an even hand.

   When adverse action has been taken against a minority employee, the employer must show there was a legitimate non-discriminatory reason. The employee still has the right to contend an ostensibly legitimate reason for his firing was only a pretext for discrimination.

   Three of the seven employees who had ever been fired for sleeping on the job were fired only after a third incident. None of the three were Asian-American. This employee, fired for his second offense, said this was a pattern of uneven discipline toward Asian-Americans. UNITED STATES DISTRICT COURT, ILLINOIS 1997.

   The mental health technician in this case filed an employment discrimination lawsuit in Federal court for being discharged for a second incident of sleeping on the job. The incident was shortly after 6:00 a.m. on the third shift.

   The U.S. District Court for the Northern District of Illinois reiterated the steps mandated by the U.S. Supreme Court for evaluating claims of employment discrimination. Is the victim a member of a protected class of persons, e.g. a racial or national minority? Has he performed his job satisfactorily? Has he suffered adverse employment action? Has the employer treated comparable non-minority employees more favorably?

   If these questions are answered in the affirmative, the employer can still overcome charges of discrimination with proof of a legitimate, non-discriminatory reason for how the employee was treated. Even then the employee can still argue the reason the employer has offered is merely a pretext for unlawful discrimination.

   The employee pointed out that every other caregiver caught sleeping on duty at the facility who ever got a second and a third chance was a non-Asian American.

   The court agreed in principle that ostensibly legitimate disciplinary standards applied unevenly toward a minority employee can result in valid charges of unlawful employment discrimination.

   However, the court ruled against the discharged employee in this case. According to the court, there is a particular danger posed by caregivers sleeping on the job on third shift, when staffing levels are minimal. Thus this employee had committed a more serious offense against the welfare of the patients than the others caught sleeping on the job to whom he wanted to compare himself, who were not fired until their third offenses, the court said. Yohannan vs. Patla, 971 F. Supp. 323 (N.D. Ill., 1997).