Let's suppose you own pharmacy, and your female pharmacist leaves her post unattended and permits an unauthorized underling to dispense prescriptions. You have two choices: retain the employee and risk that her recklessness will result in the incorrect filling of a prescription (which could lead to serious liability concerns), or fire the pharmacist for her recklessness. A Massachusetts Wal-Mart chose the latter, and a jury punished it the tune of nearly $2 million (including $1 million in punitives). The employee claimed that Wal-Mart discriminated against her because of her sex and retaliated against her by firing her two weeks after she asked to be paid the same as her male counterparts. Apparently, one of the key issues was the lack of a specific policy prohibiting the plaintiff's misconduct, an issue on which the plaintiff presented an expert HR consultant to testify. According to Massachusetts Lawyers Weekly, settlement was never an option because the plaintiff insisted on a term to which Wal-Mart would not even discuss, an apology.
The lessons of this case are many. Employment decision should not be based solely on whether you will be sued for it, but you are always safer if you have a specific policy on which you can rely to support the decision. The lack of a policy seems to offend juries' notions of fundamental fairness. When all else fails, sometimes the simplest things (like an apology) may go a long way to avoid a jury at all.