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Even as the economy recovers, employers are still realigning operations. That means some employees will lose their jobs in a reduction in force, while others will be reassigned to new positions.

Workers who end up on the street may then look at those who were retained and conclude there had to be a discriminatory reason for their misfortune. But before they can successfully sue, employees must show some degree of initiative before they can claim discrimination.

An employee who never applies for an open position or who doesn’t actively ask about available jobs isn’t going to win a lawsuit.

Recent case: Jo Childress, a black female over age 40, worked for Caterpillar Logistics Service as a supervisor. Like many companies, Caterpillar had to reduce its workforce when business declined. Childress was one of several employees notified that they would be laid off. Meanwhile, she was told she could apply for management positions.

She couldn’t find an appropriate opening. Then, after she was let go, she learned that another manager had taken an hourly position. Because that employee was a younger white employee, Childress sued, alleging race and age discrimination.

The 11th Circuit dismissed her case. It turned out that the other employee had approached the company, offering to take any open position rather than become unemployed. This wasn’t a case, reasoned the court, where an employer secretly offers a job to a favored employee and never gave others a chance to apply. Under those circumstances, Childress might have had a case without actually having to apply for a position. (Childress v. Caterpillar Logistics Service, No. 09-12772, 11th Cir., 2010)

Final note: The court in this case clearly signaled that it expects employees to take the initiative when it comes to securing work.

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