Can 2 employees be treated differently for doing almost the same thing?

A close friend of mine had an offer of employment at the company I work for rescinded because of an harassment charge found during his background check. There was no conviction, just charges filed. However, I have recently found out that a high ranking member of upper management has been charged with rape and is currently still actively employed. Is there anything there, legal speaking? Isn’t that prejudice or something?

Asked on October 17, 2015 under Employment Labor Law, Delaware


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Yes, they may be treated differently for having done similar, or even the same, thing, except as discussed below. That is because the law does not require fairness or consistency: employers are allowed to "pick and choose" among employees for employment, termination, promotion, bonuses, etc. at will, based on nothing more than management preference. It is unfair, but then fairness has no legal place in employment, as harsh as that sounds.
The exception is, companies cannot treat people differently because of certain, specifically protected, categories or characteristics. The main ones are age over 40, sex, disability, religion, or race--so if your friend feels he was treated differently because of one of these characteristics (e.g. he is black, the manager you refer to white), he may wish to speak with the federal EEOC or your state's equal/civil rights agency about filing a complaint.

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