If your organization has gone through a series of downsizings over the last few years, be sure to keep complete and accurate records. Retain all information on those who lost their jobs, including the discharged employees’ ages, races, places of national origin or other protected-class information. Here’s why:
By the time you have gone through several reductions in force (RIFs), you probably have eliminated the lowest performers already and now you may have to cut good employees. Plus, previous RIFs may have left you with fewer minorities than before. Now, a minority employee with a good performance record might claim you singled him or her out due to race.
That’s where the older records come in. They’ll help you show that you had already eliminated the poorest performers and you had to resort to cutting good-to-excellent employees.
Recent case: John Primm, who is black, survived a series of downsizings at Lucent Technologies. The company had gone from 135,000 employees to just 35,000 when Primm lost his job in the last round.
Because he was the only black manager still working in his division, he suspected race played a part. The EEOC agreed and sued on his behalf.
But Lucent was ready with two crucial pieces of evidence. First, it produced all its RIF records, showing it had eliminated close to 100,000 employees even before this round. Then, it showed that Primm was the lowest-ranking manager still working in his group. It wasn’t relevant that he was a good employee since, by this round, all remaining managers were ranked as “good.” (EEOC v. Lucent Technologies, No. 06-5414, 6th Cir., 2007)
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