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Reorganizing? Make sure open positions are available to all

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in Discrimination and Harassment,Firing,Human Resources

Sometimes a company has to rethink its organizational structure. Adapting to new business conditions means doing business the old way isn’t always an option.

Of course, reorganization may mean lost jobs, and lost jobs can mean unhappy former employees looking for reasons to sue. They may suspect the changes were merely a smokescreen to cover illegal discrimination.

The best way to prevent a lawsuit is to open up to those who are slated for termination any new positions you may be creating. Encourage all to apply. Those who don’t will have a very hard time getting far with their legal challenges.

Recent case: Laverne Tubergen—an ear, nose and throat specialist who was 65 years old—worked for St. Vincent Hospital as one of nine specialist medical directors. Essentially, the hospital operated as nine separate units.

The hospital’s chief operating officer thought the arrangement was inefficient and set about consolidating operations. Three hundred people were terminated, including Tubergen. However, the hospital opened up several new positions under the new organizational structure and invited the terminated employees to apply.

Tubergen never did. Instead he filed an age discrimination lawsuit, basing his case largely on an overheard comment about getting rid of “the old guard.”

The court embarked on an etymological search for the meaning of “old guard.” It found that the term originally referred to Napoleon’s Imperial Guard and denoted a conservative faction resistant to change. Thus, the court found, members of the old guard could be old or young. It concluded there was no age bias in the overheard comment.

The court then turned to whether Tubergen could prove that he had been denied an opportunity because of his age. Since he never applied for the new positions, he could not. The case was dismissed. (Tubergen v. St. Vincent Hospital, No. 06-4304, 7th Cir., 2008)

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