How To Tell If It’s A Layoff or Retaliation / Discrimination?

layoff or discrimination and retaliationIt appears that employers become progressively more creative at trying to cover up unlawful retaliation and wrongful termination as a layoff. Because the employer’s motive for terminating an employee is inherently hard to prove, this is a temptingly easy way for companies to retaliate and also discriminate, including replacing older workers with younger ones, females with men, workers of color with white employees, or doing the opposite – replaced white employees with minorities to achieve a certain quota, which is just as unlawful.

Here is a common situation, especially in the tech industry: a high-level employee, who happens to be an Asian female with a distinct accent, is being demoted to a lower position due to the alleged elimination from that higher position. A few months later, due to the alleged restructuring in the company, the above-mentioned eliminated position becomes open again, and a white male who is less qualified in every way, is being hired to fill that position. Shortly after, the demoted female is being advised of the company’s cuts in workforce, and is handed layoff notice with bigger or smaller severance offer.

Whether this kind of lay-off is discriminatory depends on many facts, but it surely is worth considering all the evidence available relating to that termination. An experienced employment attorney can evaluate the totality of the evidence to determine whether a discrimination or retaliation case can be made. This would be useful not only in taking legal action against the employer, but it can be just as useful in negotiating a higher severance than the one originally offered.

It’s important to keep in mind that the burden of proving discrimination/retaliation is on the aggrieved employee. In other words, the employer doesn’t have to prove that the layoff in question is non-discriminatory. It’s the employee who has to prove that the violation took place.

Here are some of the more common types of evidence that would  suggest that the layoff is an excuse for discrimination:

  • The timing of events. Termination that closely follows a protected activity, such as complaining about a violation of law at the workplace, filing a discrimination or harassment complaint internally or with the government agency, requesting medical leave or reasonable accommodation to a disability, etc. Timing alone is often not sufficient to make a case but it can be quite probative in this analysis.
  • Documents that show and witnesses who can confirm in so many words that the decision makers were unhappy about the laid off employee’s protected activities.
  • Making the allegedly eliminated position available again shortly after it was allegedly eliminated. Although this alone also is usually insufficient to prove discrimination or retaliation, this type of fact can be quite useful in conjunction with other evidence.
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