When business is down and you need to make cost-saving cuts, it can be tempting to use that as an excuse to shed a “troublemaking” employee.
Don’t do it.
Instead, base your layoff decisions on easily explained and logical reasons such as seniority. If the employees who lose their jobs happen to include the employee you would most like to dump, so be it. She won’t win a retaliation or other discrimination lawsuit—even if she thinks she lost her job because she complained about discrimination in the past.
Recent case: Holly worked as a painter at a resort property until she was terminated in a reduction in force. She had previously made numerous internal complaints about sex discrimination. At one point, after transferring to another assignment, she complained that the male painter who replaced her earned a dollar more per hour than she had received. It turned out there had been a paperwork mix-up, and the man who replaced Holly had his pay reduced to match her previous rate.
Holly also complained several times about being forced to do more dangerous work than some of her male co-workers.
Then the recession hit. Her supervisor was told how much he had to cut from the budget and given permission to make changes as he saw fit. The supervisor decided to reduce his staff from four painters to two. He cut Holly and a male painter, tellingthat he did so because the two were the least senior painters he had.
Holly sued, alleging retaliation for complaining about sex bias. However, her lawsuit was dismissed after the employer showed it had used a neutral factor—seniority—to decide how to economize. (MacBain v. Smiley Brothers, et al., No. 1:10-CV-1561, ND NY, 2013)
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