Here’s something to consider when planning a reduction in force: If you know the move will mean someone in a protected class will lose his job, think strategically in case he sues.
One smart move is to make sure that the lost job isn’t merely turned over to someone outside his protected class.
A better approach is to distribute the work to several others. That way, it doesn’t look like you singled out someone to cut and merely used the RIF to give the job to someone else.
Recent case: Arkady Levitant was a receiving clerk at the Waldorf Astoria when he injured his leg at work. He was off for almost nine months and then returned to work after being warned he would be terminated if he did not. He continued to work until he was terminated three years later in what he was told was a RIF.
Levitant sued, alleging age discrimination because a younger employee took over some of his old tasks, such as working on the loading dock.
He claimed the hotel had used the RIF as an excuse to get rid of an older, injured worker.
The court tossed out his case. It reasoned that Levitant wasn’t the only employee let go. Nor had the younger worker entirely taken over Levitant’s job. Instead, job duties had been distributed to several employees. That was a clear sign that the RIF was genuine. (Levitant v. Hilton Hotels, No. 10-Civ-4667, SD NY, 2012)
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