Ordinarily, when employees claim theirwere because of race or other protected characteristics, they try to prove discrimination by showing they were replaced by workers outside their protected class.
But if the employer outsourced the work, the racial, sexual or other characteristics of the employees now performing the jobs isn’t relevant.
Recent case: Le, who is of Vietnamese origin, worked in information technology for a city government. Including Le, the IT division had three employees. The other two were black.
Le created a computer program for tracking traffic tickets. He installed it on the city’s computers but then removed it, claiming he actually held rights to the underlying code. His supervisors told him to put it back or he would be fired.
Meanwhile, the city decided to eliminate the division entirely, hiring an independent contractor to do the work. All the workers assigned to the project were white.
Le sued, alleging that the city stole his work and discriminated against all three terminated employees. As proof, he pointed to the white workers now doing the three jobs.
The court didn’t buy it. First, it said the computer code belonged to the city, since Le developed it for the city, using city resources. Second, it said the racial makeup of the people doing the outsourced work couldn’t prove the employer discriminated. It had no control over who the contractor assigned. (Le v. City of Wilmington, et al., No. 11-1770, 3rd Cir., 2012)
Final note: This case is a good reminder to make sure your technology policy spells out that any work, processes, copyrights, trademarks or patents created by people while working for you belong to the company. Get your attorney’s help to draft a sound policy.