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Is it legal to fire one employee but not another for the same breech of company policy?

Our company policy is to not hire smokers. On our job application the question is asked. Several employees that checked "no" on the application and later found to be smokers have all been fired--except one.
Penny Morey answered March 26, 2010
URL: http://www.entrepreneur.com/answer/222076
What you describe is legal in an employment-at-will state, but not advisable. That is, the employer may terminate employees for any reason or for no reason in an employment-at-will state and most certainly for offenses that are against a company policy that is stated as such in the employee manual or for violating a standardized practice (i.e., the company has consistently fired individuals doing a certain thing, even though it is not specifically mentioned in the employee manual or otherwise promulgated as a written rule).

Firing some but not all employees committing the same offense is risky because the employees who were terminated may have grounds for claiming the company discriminated against them in some way.

For example, if the employee not terminated is male, but those fired were all females; or if the employee not fired is young, but those fired were over the age of 40; or if the employee not fired is one ethnic or racial background or religion, while those fired are all of an another background.

So to answer your question, laws against discrimination may have been broken or may at least appear to have been. In that case, the employees fired can bring a claim against the company either severally or jointly if they wish to do so through the EEOC.

What this really is, regardless, is a very poor management practice. Employees want to be in an environment in which they are certain that fair treatment is the general rule. In this situation, morale is negatively affected, I am sure, by this course of action.

Penny is a seasoned human resources executive and consultant with over 25 years of diverse business experience in advising enterprise leaders on employment-related matters.