On April 25, 2014, the U.S. Court of Appeals for the Seventh Circuit reversed the grant of summary judgment in an age discrimination case. Baker v. Macon Resources, Inc., No. 13-3324 (April 25, 2014). The Seventh Circuit found that the employer treated a younger employee more leniently than the plaintiff for the same policy violation. In an ADEA disparate discipline case, the inquiry is whether a younger employee engaged in similar misconduct but received lighter punishment. The Seventh Circuit rejected the employer’s proffered reason as pretext. The Seventh Circuit stated that pretext may be inferred from inaccuracies or inconsistencies in an employer’s proffered reason as well as selective enforcement of a disciplinary policy. In Baker, the proffered reason–an attempt to distinguish the plaintiff from the younger employee–was inconsistent with the employer’s own policy, which it had selectively enforced. Therefore, the Seventh Circuit concluded that the pretext evidence could lead a jury to reasonably believe that age is the true reason the employer fired the plaintiff but retained the younger employee after both violated the same company rule.

Baker is a reminder that employers should consistently enforce their own disciplinary policies in order to avoid liability for employment discrimination based on disparate discipline.