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Justify move to outsource troubled department

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in Discrimination and Harassment,Human Resources

These days, it’s not uncommon for larger employers to rethink jobs or even whole departments. Instead of maintaining, for example, a janitorial or security department, some are outsourcing those functions, bringing in outside companies to perform the service.

Before outsourcing, carefully lay the groundwork. Document the underlying financial and practical reasons, especially if the department is troubled and some employees have filed discrimination or harassment complaints.

Here’s why: An enterprising attorney might argue that you outsourced the department to get back at an em­­ployee for complaining. If it can be proved that retaliation was the main reason for the move, the employee wins.

Recent case: John, who is black, was in charge of security at St. Mary’s University. His subordinates filed numerous complaints against him, alleging that he treated them poorly. He filed an EEOC complaint, alleging he was investigated because white employees complained about him, while the university ignored complaints by black employees against white supervisors.

John lost his job shortly after the university closed down the security office and outsourced the function. He added retaliation to his claims.

Fortunately for the university, it could prove that it closed the office for financial and logistical reasons. Recent campus growth would have required dramatically expanding security staffing, so it outsourced the function instead. John’s case was dismissed. (Sauls­­berry v. St. Mary’s Uni­­ver­­sity, No. 12-1069, DC MN, 2013)

Final note: Courts don’t want to interfere with legitimate business decisions, including outsourcing. But they also don’t want em­ployers to skirt the law and use outsourcing as an excuse to punish workers. Your job is to justify any outsourcing decision with facts and figures that show punishing employees wasn’t the motive.

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