Most employers have policies.
Attendance policies. Timekeeping rules. Safety requirements. Conduct standards. Performance expectations.
The lawsuit usually is not about whether the rule existed.
It is about how the rule was applied.
An employee is disciplined for attendance problems and responds, “Other people were late too.”
A worker is terminated for violating a safety rule and says, “Everyone does that.”
A supervisor finally loses patience with a poor performer, only to discover that another employee with similar problems was given three more chances.
None of those statements automatically proves discrimination.
Employees are not necessarily similarly situated just because they violated the same rule. Circumstances matter. History matters. Severity matters. Different decision-makers, different conduct, or different disciplinary records can legitimately produce different outcomes.
But unexplained differences create questions.
And questions that are easy to answer in real time can become surprisingly difficult two years later, when memories have faded and everyone is sitting in a deposition.
That is why consistency is not really about treating every employee exactly the same.
It is about being able to explain why the outcomes were different.
Maybe one employee had prior warnings and another did not. Maybe one violation created a significant safety risk. Maybe the conduct was not actually comparable. Maybe business circumstances changed.
Those can all be legitimate reasons.
The problem comes when nobody can remember the reason—or when the explanation first appears after the claim is filed.
Good employment decisions tend to have a simple story: this was the rule, these were the facts, and this was the reason for the decision.
No reconstruction required.
The Velvet Hammer takeaway: Consistency does not mean identical outcomes. It means being able to explain the difference.
Employment decisions are often more complicated than they appear on paper, particularly when discipline, performance history, and protected characteristics overlap. These issues can be difficult to navigate. The Law Center of Amy E. Davis is always here to help.