- May 27, 2009
- David Levy
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Given current economic conditions, many employers are understandably reducing their work forces. These reductions have many names—layoffs, workforce reductions, downsizing, rightsizing, smart-sizing, force shaping, simplification, workforce optimization, reductions in force—but I will refer to them collectively as “layoffs” in this blog.
Many employees have the misconception that they cannot have discrimination claims against their employers because they were laid-off rather than fired. But many laid-off employees have strong employment discrimination claims under both California and federal law.
The most common form of discrimination perpetrated by employers through layoffs is age discrimination (i.e., discrimination against employees over 40 years old based on age). Many employers use the need for a reduction in the workforce as an excuse to eliminate older employees because of, among other reasons, their higher salaries and lower physical and technical abilities. Still other employers use criteria to lay off employees that may appear to be neutral but have a disproportionate impact on older employees.
Likewise, some employers use the need for layoffs as cover to discriminate against employees because of other protected characteristics such as race, sex, religion, disability, color, gender, sexual preference or orientation, or national origin (“protected classes”).
Employees should understand, however, that being members of a protected class does not automatically insulate them from being laid-off. They must still prove that their employers acted with a motive to discriminate illegally. Ordinarily, this is proven through a combination of direct or circumstantial evidence that (1) the reasons offered by the employer were untrue, and/or (2) that intentional discrimination was the true reason.
Assessing whether layoffs are discriminatory is complicated, both employees that suspect that they are victims of discriminatory layoffs and employers that are contemplating layoffs (or that have recently laid-off employees) should consult with an employment lawyer.