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Proceed with layoff if employee you planned to cut suddenly complains about discrimination

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in Discrimination and Harassment,Human Resources

When employees hear rumors that business is down, they often worry that jobs will be cut. One trick they sometimes use is to rattle a few chains and start complaining about discrimination in hopes that the employer will think twice about terminating the complaining employee for fear of litigation.

Don’t let that interfere with plans already in place for a layoff or other workplace changes that you know aren’t related to discrimination.

Just make sure you have adequate documentation to explain when the layoff decision was made and why certain individuals were included and others were not.

Recent case: Rhonda Scott was an administrative coordinator with subprime auto lender United Auto Credit. The company had a written rule that specified new employees would not be considered for promotion until their first anniversary with the company.

Still, Scott let her supervisor know she was interested in two promotions during that first year. Another employee who had been with the company over a year got the first job. The second was never filled after the 2008 financial crisis hit.

Meanwhile, a manager higher up in the company began preparing for layoffs as conditions deteriorated. He made up a tentative list of employees who would get the ax based on performance and other related factors.

Just a few minutes before a manager sent out an email detailing who would be laid off (including Scott), Scott sent an email to her bosses alleging that she had been denied two promotions because of her race.

When she was terminated anyway, she sued, alleging that she lost her job in retaliation for complaining about the two promotion opportunities allegedly denied her.

In pretrial procedures, Scott made the case that she had sent her email before the termination email went out. However, the court said that wasn’t enough. It said she couldn’t come up with any evidence during discovery that showed she hadn’t been on the termination list three days before her email went out. Nor could she show she had been added at the last minute. (Scott v. United Auto Credit, No. 3:09-CV-363, WD NC, 2011)

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