Workplace Racial Discrimination and retaliation in RIFs

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Watch for Racism in the workplace with RIF’s

“Here’s the list for the RIF that you asked for,” HR manager Petra Fontaine told Operations VP Gordon Bagwell. “I’ve given it to you broken down into thirds, 10 names in each group, ranked by length of service and performance in reverse order.”

“Thanks,” Gordon said. “I should be able to tell you how many heads we’re talking about early next week.”

“If you get to the second group, there’s a special situation,” Petra said. “I’ve marked the name in bold.”

Gordon picked up the list. “Emily Atkinson,” he read. “I don’t know her. What’s the situation?

“I’m a little concerned about laying her off, although she’s vulnerable in terms of seniority and her evaluations,” Petra said. “She’s involved in the racial discrimination lawsuits Martha James filed.”

“Martha was, is, and always will be a large pain,” Gordon grumbled. “What do you mean, Atkinson is involved?

On the list
“She’s on a list of witnesses that Martha intends to call,” Petra said.

“Is that all?” Gordon snorted. “She hasn’t actually testified in the suit?”

“No, and she may not, if we settle it as we’ve discussed,” Petra said. “But I would still be apprehensive about it looking like retaliation if we lay Emily off. She’s already sore because she didn’t get promoted last month.”

“You let me worry about that,” Gordon said.

Gordon later designated 16 people for the RIF. The cutoff fell just below Emily Atkinson on the list, and so she was among those laid off. She sued, claiming her dismissal was punishment for her willingness to testify on behalf of a plaintiff in workplace racial discrimination lawsuit.

Did she win?

Decision

Yes. Emily won her retaliation suit.

The court said that just being on a witness list to testify in a colleague’s employment discrimination suit was “protected activity.” It wasn’t necessary for Emily to have actually testified – the law shielded her against retaliation anyway, the court said.

And the company’s decision to lay her off smelled of getting even.

The court noted that she was denied promotion after the company became aware of her participation in the lawsuit, and that the break point on the RIF list came just below Emily’s name. Given the circumstances, these facts didn’t look like coincidences.

Spirit of the law
Under Title VII, it’s illegal for a firm to punish an employee for participating in racial discrimination lawsuits. In this case, the court expanded the definition of “participate” to include someone who was poised to support a racial discrimination lawsuits. It would be against the spirit of the law to leave someone like that unprotected, the court said.

With this decision in mind, HR managers may want to document not only legal action employees may have taken, but also any suits by colleagues in which they’re listed as witnesses.

Cite: Jute v. Hamilton Sundstrand Corp., No. 04-3927, 2nd Cir, 8/23/05.

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