In order to make out a prima facie case of disparate treatment discrimination under Title VII, a plaintiff must offer evidence demonstrating that he or she was treated less favorably than other employees outside of the protected category. What happens when the comparable employees received disciplinary action similar but not the same as that imposed on the aggrieved plaintiff?

In Lauture v. St. Agnes Hospital, the plaintiff was a Haitian immigrant medical laboratory technician who was suspended and required to go through retraining as the result of procedural errors noted by her supervisors. She resigned and claimed that the disciplinary action taken against her was more severe than that meted out to her white, U.S.-born co-workers.

The Fourth Circuit Court of Appeals (which includes North and South Carolina) affirmed summary judgment for the hospital. In the opinion (written by retired Supreme Court Justice Sandra Day O'Connor sitting by designation), the court noted that it would be unreasonable to hold employers to demonstrating that the disciplinary action taken against employees is exactly the same in each circumstance. Instead, the employer only need show that the action taken is within the same range of discipline given to employees outside of the protected category.

In this case, the plaintiff was given disciplinary steps more serious than some co-workers who also made lab mistakes. However, the Fourth Circuit noted that two white, U.S.-born technicians had been fired for lab mistakes. Overall, the plaintiff's experience was within the range of disciplinary steps imposed by the hospital regardless of race or national origin.

While consistency of disciplinary treatment is important in defending disparate treatment claims, the action taken does not need to be identical in each circumstances. There may be aggravating or mitigating circumstances (i.e., length of service, willfulness, etc.) that justify taking different steps for violations that appear similar on their faces. If this action is within a consistent range of discipline applied regardless of race, gender, etc., and if the reasons for the differences are thoroughly documented, the employer will not be punished because it tailored the action taken to the particular circumstance.