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Selective enforcement may be discrimination

Workers in New York and around the country typically strive to follow an employer's rules about workplace conduct. When an employee fails to follow the rules, employers are allowed to appropriately discipline the worker. However, there are circumstances in which a worker who is a member of a protected class may be able to take action against an employer for selectively enforcing rules in a way that could be discriminatory.

Most employers provide workers with a handbook or other set of printed rules for workplace conduct. Employees know from the beginning that it is important to follow these rules to remain in good standing within the organization.

It often happens, however, that employers or specific supervisors are more selective about how they enforce these rules. For example, while a workplace may have rules about personal internet usage or the timing of lunch breaks, in practice, employees might be allowed to browse websites or take early or late breaks as long as their work is done.

One difficulty with lax enforcement of office policies is that employees may become very upset if they suddenly find themselves facing disciplinary action, or even termination, for violating a policy when other people in the office regularly do so without consequence. Since most states operate under "at-will" employment laws, individuals who are fired because of a rule violation typically do not have any recourse because employers are at liberty to hire and fire as they wish.

However, if an employee has reason to believe that he or she has been fired or disciplined for breaking a rule because of his or her race, national origin, religion, disability, gender, family status or age, the employee may be able to make a case that the enforcement of a normally unenforced rule constitutes discrimination. An experienced employment law attorney may be able to provide advice on seeking compensation.

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