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Document business realities, performance ­criteria that led to job-cutting decisions

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in Discrimination and Harassment,Human Resources

During tough economic times, businesses often have to cut labor budgets and eliminate positions. Smart employers make sure they document that process with facts and figures—just in case an affected employee decides to sue and tries to parlay a few stray, insensitive comments into the “real” reason she lost her job.

With clear business reasons to counter suddenly remembered slights, those random comments won’t sink you in court.

Recent case: Kelley, who is black, was in a management training program with Otis Elevator Co. She frequently ranked near the bottom of her class in the training program and missed sales targets.

When the economy didn’t improve as fast as Otis thought it would, man­­agers prepared a list of employees to cut in a reduction in force. Kelley was placed on the list because of her less-than-stellar performance and the company’s need to reduce the head count in her department.

After she was terminated, Kelley sued, alleging she had worked in a racially hostile environment.

She cited two incidents, both occurring during a training program at a hotel.

In the first, Kelley ran into her supervisor as he was entering the hotel from the pool. Kelley commented that it looked like the supervisor had gotten some sun. The supervisor observed that that was a problem black people like Kelley didn’t have to worry about.

The second incident occurred when Kelley was walking down a hall with two fellow black trainees.

A supervisor commented, “Hey, it’s the dreamgirls,” an apparent reference to the popular movie “Dreamgirls” about the Motown group The Supremes.

Among Kelley’s other complaints: That she had been assigned to a cubicle toward the back of the office, that a supervisor called her “Ms. Smartypants,” and referred to her as “slob-ola” for having a messy cubicle. She also said her supervisor hadn’t invited her to lunch on her first day in the office.

In short, Kelley cited every incident she could recall that she perceived as an indignity, claimed the underlying motivation was really racism and tried to use them to prove she had been terminated because of bias.

Otis argued that none of the incidents were overtly racist. While the hotel incidents may have been mildly insensitive, the rest were just ordinary slights that shouldn’t be grounds for a lawsuit.

None, Otis argued, trumped its otherwise legitimate termination reasons. It had plenty of solid evidence that the economy meant fewer sales and created an urgent need to cut the payroll. Plus, because Kelley was the lowest performing trainee, she was the natural and logical person to cut.

The court agreed and dismissed the case. (Benson v. Otis Elevator Com­­pany, No. 10-Civ-3246, SD NY, 2012)

Final note: Otis also argued that the supervisors responsible for the insensitive comments weren’t in­­volved in the RIF planning and didn’t make the final termination decision. Plus, months passed between the incidents and Kelley’s termination, and she never complained about any of the slights until after she lost her job.

The court sensibly explained that not every slight is evidence that an employer discriminated and that no federal law guarantees that a supervisor won’t sometimes offend someone.

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