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Starting on August 22, 2016, Theresa Harrison worked as a probationary employee at the Port Authority, handling various responsibilities at Newark Airport. On December 23, 2016, the Port Authority fired Harrison, citing a runway incursion the day before. Specifically, the employer pointed to the fact that Harrison drove a vehicle onto an active runway, which in turn caused an airplane to abort its in process landing. After her termination, Harrison sued the Port Authority, alleging wrongful termination based on her race/color, national origin, and/or gender under Title VII of the Civil Rights Act of 1964.

Now, most would assume that it is a terminable offense to drive into the path of a landing plane on the runway. Certainly, the passengers on the landing plane would agree. But does that mean that there is automatically no viable wrongful termination claim based on race, national origin, or gender? Not necessarily.

In Harrison v. Port Authority Of New York And New Jersey, No. 22-1263-CV, 2024 WL 137253, (2d Cir. Jan. 12, 2024), Harrison pointed to the fact that a white male of different national origin had previously driven onto the runway but was not fired.

What is unfair disciplinary action?

Unequal discipline in the workplace can be considered a violation of Title VII if it is applied in a discriminatory manner based on an individual’s race, color, national origin, sex, gender identity, sexual orientation, religion, disability, age or other protected characteristics. Title VII prohibits employment discrimination on the basis of these protected characteristic, including when employers decide how discipline is to be given out.

If an employer applies discipline disproportionately or unfairly to employees belonging to a certain race, gender, or other protected group, it may be seen as a form of disparate treatment or disparate impact. Disparate treatment occurs when individuals are intentionally treated differently based on their protected characteristics, while disparate impact involves neutral policies or practices that disproportionately affect a particular group.

For example, if an employer consistently imposes harsher disciplinary measures on employees of a specific race or gender without a legitimate and non-discriminatory reason, it could be seen as discriminatory under Title VII, which is designed to ensure equal opportunities and fair treatment for all employees, regardless of their protected characteristics, in various aspects of employment, including discipline and termination.

In Harrison, the district court held that the differing treatment created enough of a question of fact that the case should be decided by the jury and not be dismissed as a matter of law. At that point, over 98 percent of cases will settle. This one did not. Maybe the employer refused to offer anything. Maybe the former employee got a bit to greedy. So, the case was submitted to trial by jury.

At trial, the Port Authority presented evidence that the alleged comparator’s incursion onto the runway occurred in the middle of a blizzard, and that he immediately reported the incident after realizing what occurred. On the other hand, Port Authority presented evidence Harrison had no clue that she committed the runway incursion when it occurred; failed to take any immediate corrective actions; and then did not comprehend the serious safety ramifications of her incursion onto the runway.

The jury found that Harrison’s conduct was worse and was not comparable. As a result, it returned to a verdict for the employer.

The lessons to be learned are: (1) employment discrimination and wrongful termination cases can be based on uneven discipline – even if the employee does something wrong; (2) it is important to understand when to settle and when to push; and (3) don’t drive into the path of landing airplanes.

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Spitz’s employment law website is an advertisement and marketing material. The race, gender, and national origin discrimination information available at the top of this webpage and at this wrongful termination website are for informational use only and should not be considered as providing any or the best legal advice. To address the specifics of your unique employment issues,  it would be best for you to contact our top attorneys to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.