Courts seldom second-guess employers for making tough economic decisions, as long as it’s obvious those decisions were made honestly and not as a cover for discrimination.
Make that clear by documenting the decisions at the time you make them—not later after an employee has alleged some form of discrimination.
Recent case: Linda worked for Bank of America, managing credit and debit card business for private customers. Another considerably younger woman managed similar business lines for government clients.
Linda worked at the bank for more than 30 years before she tookfor breast cancer treatment.
Meanwhile, the bank concluded it had to cut costs. Managers determined that Linda and her co-worker performed similar tasks, which could be combined into one job. Notes taken at the time included a discussion of how Linda didn’t have experience with government clients, while her co-worker had worked with private customers.then decided to move Linda into another position when she returned. The new job paid the same, but didn’t have the same level of duties.
But as the bank continued to look for ways to cut costs, it decided to eliminate the position Linda had just begun doing.
After she was fired, she sued, alleging age discrimination and retaliation for takingleave.
She lost after the bank presented documentation showing that fiscal needs—not age or FMLA leave—drove the decisions to first consolidate the jobs and then terminate Linda. (Diehl v. Bank of America, No. 11-11917, 11th Cir., 2012)
Remember: Under the FMLA, you must reinstate employees to their old jobs or substantially equal ones unless you can show you made changes based on factors other than leave. In other words, be prepared to show you would have made the change even if the employee never took FMLA leave.
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