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layoffs and discrimination

One example of a problem with RIF’s (Reductions in Force): What if the employer did not actually eliminate the position? What if the employer just redistributed the work?

The fact that an employer retained in the same position an employee outside the plaintiff’s protected class may be persuasive evidence of illegal discrimination. For example, if the company lays off an older employee and keeps a younger employee, or fires a female employee and keeps a less qualified male employee, it can be held liable for discrimination.

An employee can show that the employer’s justification for the RIF is a pretext for discrimination in several ways:

  •  By providing evidence that the company did not in fact eliminate the position. Furr v. Seagate Tech, Inc., 82 F.3d 980, 988 (10th Cir. 1996).
  • Even if the position is eliminated but the RIF’d employee’s duties were redistributed, a court can find the position was eliminated due to discriminatory intent. Coleman v. Quaker Oats, 232 F.3d 1271, 1283 (9th Cir. 2000).
  • An inference of discrimination arises when the employer has a continuing need for the skills and services the RIF’d employee previously provided, and that his duties were distributed to someone younger.  Id.
Pamela A. Smith
Law Office of Pamela A. Smith
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pam@pamsmithlaw.com

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