Blog Post


Layoffs: An employer who selectively cleans house cannot use convenient euphemisms like “downsizing” or “streamlining” to cover up illegal discrimination

An employer, consistent with its business judgment, can dismiss an employee during a reorganization or RIF (Reduction in Force). Trimming the fat from a company’s organizational chart may be a prudent practice. The flip side of the coin is that an employer who selectively cleans house cannot hide behind convenient euphemisms such as “downsizing” or “streamlining.” The employer’s decision must not be tainted by discriminatory bias or negative stereotypes about employees who are members of a protected group.

When examining whether the layoff was discriminatory, an initial question is why did the employer choose to discharge a particular employee over another person with similar duties?  An employer’s false, inaccurate, different or inconsistent explanations for the decision to RIF an employee is admissible evidence of a pretext for discrimination.

There are other ways for a plaintiff to show that an employer’s stated reasons for selecting a particular employee for the RIF are a pretext for illegal discrimination.  Discrimination can be inferred from  evidence that the employee was treated differently from similarly situated employees who are not members of a protected class.  E.g., the company lays off a female employee but keeps a male colleague. Or, the company lays off a 55 year old employee and keeps an employee who is 33 and has less experience or qualifications.  For this kind of evidence to be persuasive, the similarly situated employees, called comparators, need not be perfect replicas.  They must, however, be substantially similar in all relevant aspects.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


Blog Archives