Potential clients almost always want to know, "Do I have a case?" Unfortunately, the best I can say is "maybe" or "it depends." Until I can hear how the employer defends its actions, I can only "shoot in the dark." The other side of the story is critical to an employment case. A recent post by Russ Cawyer at Texas Employment Law Update illustrates this truism. A worker at Walgreen’s was fired when she ‘stole" a $1.39 bag of chips and consumed them.
One employment lawyer, Jon Hyman, at Ohio Employer law Blog, described this is a simple case of theft. But, then fellow San Antonio lawyer, Chris McKinney at Texas Employment Law Blog, said no, the lady needed something to eat. Her blood sugar was low. She had the choice of leaving her work station to get food from her locker, which was likely a terminable offense, or going into diabetic shock. She paid for the chips as soon as she could. Russ Cawyer points out, without drawing any conclusions that these additional facts shed new light on the so-called "theft."
The best defense an employer can mount to a charge of discrimination is written discipline. If an employer can show contemporary, written discipline, they will have a strong defense to any complaint of discrimination. I spoke with a man once who said he had been written up only 2-3 times – all after he had initially complained about discrimination. As the case progressed, I learned that he had actually been disciplined six times in writing, two of which were before the complaint of discrimination. Some of those write-ups were objective, several were subjective.
Every case has another side. No lawyer can intelligently assess the possibilities of a case without first developing some understanding of the other side.