When you need to downsize your organization, you may worry if a disproportionate number of the employees that are terminated are members of a protected class. That can happen if you recently hired more minority employees and now have to cut the labor budget.
Ordinarily, courts will view your retention decision with suspicion if you discharge qualified minority employees but retain white employees. But, as a new ruling shows, you can justify your decision by having clear documentation that shows you had a seniority rule in place and followed it.
Recent case: David Johnson, a black male, sued Keebler-Sunshine Biscuits when he lost his job during a round of downsizing while a white female was retained. Pursuant to a union contract, the female had “bumped” Johnson out of his position because she had seniority.
The court dismissed his lawsuit, saying that since Keebler had a pre-existing bump rule based on seniority, it had a legitimate reason unrelated to race for not retaining Johnson. (Johnson v. Keebler-Sunshine Biscuits, No. 06-3219, 3rd Cir., 2007)
Final tip: To avoid risking a lawsuit, always apply rules uniformly. For example, if a company applies the seniority rule for some positions but not others, the result would smack of manipulation to retain a favored race. Also, make sure employees understand the retention criteria.