Discharged employees who sue may ask the court to order their reinstatement if they can prove discrimination. That’s one good reason to make sure you consider the employee’s former position when planning a reduction-inforce (RIF) while a lawsuit is pending. Don’t think you can ignore it just because the position isn’t filled.
Here’s why. Courts won’t order reinstatement if it’s clear the employee would have lost the job to a RIF anyway.
Recent case: Jose Casanova, who is of Cuban descent, was hired to manage PRE Solutions’ newly created Hispanic sales division. Casanova later claimed his supervisors singled him out almost immediately for poor treatment based on his ethnicity.
One supervisor allegedly called Casanova a “fat wetback.” The same supervisor also refused to refer to him by his given name, Jose, and always called him “Carlos” or “Julio.” Casanova filed an EEOC complaint.
After considering his complaints, PRE Solutions agreed he had been treated poorly. The company promoted him and gave him a $10,000 raise. Then, after he didn’t meet sales goals, it selected Casanova for inclusion in a company-wide RIF based both on his performance and a decision to eliminate the position for economic reasons.
He sued and asked for reinstatement. But the court tossed out his case. It reasoned that it would be futile to reinstate Casanova to a position that was eliminated, since the company could simply discharge him as part of a legitimate RIF the same day. (Casanova v. PRE Solutions, No. 06-12417, 11th Cir., 2007)