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Carefully document RIF strategy to guard against discrimination claims

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in Discrimination and Harassment,Human Resources

Employees terminated ­during re­­ductions in force (RIFs) sometimes believe they were hand-selected for layoff because of discrimination or retaliation for prior complaints. They may sue, claiming the RIF was a convenient excuse to get rid of a troublesome worker.

Smart employers consider that possibility and carefully document the RIF process to show when the possibility of layoffs was first considered and how employees were picked for termination.

Recent case: Harry, who is black, was terminated during a RIF at the bank where he had worked for several years. During his tenure, he had filed a number of internal complaints with HR over perceived race bias in how promotions were handled.

When Harry was laid off, he sued, alleging discrimination and retaliation for having complained.

But the bank was ready. It showed that contingency planning on how to cut costs began months before the actual RIF occurred. As soon as earnings fell, managers were told to prepare. Harry was included based on upper management’s assessment that the tasks he performed could readily be reassigned to others, saving lots of money.

The court said nothing the bank did cast doubt on its claims that a RIF was in order, that planning began early and that it found cost savings by cutting Harry and reassigning his job duties. There was no evidence that anyone took into account Harry’s past complaints. (Bundy v. US Bank, No. 12-1436, DC MN, 2013)

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