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Slow business forces RIF? Most staffing decisions won’t trigger bias liability

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in Discrimination and Harassment,Human Resources

In tough economic times, it’s always hard to balance employee skills with the available work. If you need to conduct a reduction in force because of slow business, it’s perfectly legal to move employees around to better meet your new needs even as you lay off others.

That’s true even if the transferred employees take over all or most of the job duties the terminated employees performed.

During a RIF, you are merely realigning your workforce to your available work.

Few judges will second-guess those moves, even if the main im­pact is on one employee who happens to be a member of a protected class.

Recent case: Willie was the only black electrician working for Regent Electric. He had been hired for a specific project. When Regent’s work declined dramatically, it moved electricians around to various projects, including Willie’s. The transferred electricians had more seniority, so the company terminated Willie. A week later, it also terminated 10 other electricians.

Willie sued, alleging that he had been cut because he is black. He argued that he had been replaced by white electricians and therefore had been the victim of discrimination.

The court disagreed. It pointed out that moving employees around during a business downturn is an employer’s right. Regent could move workers where they were needed even if that displaced a newly hired minority employee. (Copeland v. Regent Electric, No. 11-3478, 6th Cir., 2012)

On the other hand, assume your layoff will result in lawsuits from former employees

Your organization may be the most progressive, fair and nondiscriminatory employer around. That doesn’t guarantee you won’t be sued by former employees.

That’s why you must make sure all your layoff decisions are fair, im­­partial and based on solid business reasons. It’s your best defense to a lawsuit that seems to come out of nowhere.

Recent case: Elena, who is Fili­­pino, was terminated from her pick­­ing job with a custom shirt manu­­facturer. She and several others lost their jobs because they couldn’t keep up with the number of orders they pulled from shelves during a shift and because their accuracy rates for pulling the correct merchandise was below expectations.

Elena sued, alleging she had really been terminated because of her race and national origin—even though she had never complained about any form of discrimination while working for the company.

The shirt company argued that Elena was one of several Filipino workers who were terminated. However, many other Filipinos, including some of Elena’s cousins, kept their jobs. Moreover, all other fired workers were otherwise outside her protected class. It said that was evidence enough that Elena wasn’t targeted because of race or national origin.

The employer also showed that everyone terminated wasn’t meeting accuracy and volume expectations; all retained employees were.

That was enough for the court to toss out Elena’s lawsuit. (Famu­lar­cano v. Sanmar, No. 1:10-CV-511, SD OH, 2012)

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