When making the tough call about who receives a layoff notice (and defending that decision in court), rely on more than one evaluation tool.
Why? Overly rosyare a common problem at many organizations. So if you cite to justify your layoff selections, attorneys for your laid-off workers will hold up those positive evaluations as evidence of your discrimination.
Instead, learn from what the employer did in the following case: Reduce your risk by relying on a broader group of decision-making tools that use objective factors. And with any layoff, work with your attorney to make sure the layoff doesn't pose a disproportionate impact on protected groups (females, minorities, etc.).
Recent case: To choose which plant workers would be laid off as part of a corporate restructuring, BASF used an extensive re-evaluation process created by an outside consultant. It included newand skills tests performed over the phone (without knowledge of the person's age, race or national origin). The assessments focused on skills BASF found necessary to the restructuring.
A separatepanel reviewed those choices, which were also reviewed by the legal department and the employer's EEO manager for possible adverse impact.
Even with those precautions, 10 laid-off workers filed suit, alleging age discrimination. But the cases went nowhere. A district court sided with BASF, and a federal appeals court agreed, calling the company's plan nondiscriminatory and simply intended to determine objectively whether employees had the skills needed for future performance given the restructuring. (Cerutti v. BASF Corp., No. 02-3471, 02-3700, 7th Cir., 2003)
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