csua.org/u/e12 -> www.bankersonline.com/operations/gp_riflegalese.html
Gerard Panaro, BOL Guru A March Conference Board report said that Americans are now more worried about their jobs than at any time since 1993. The US has lost more tha n 2 million jobs since March 2001, the worst slump in two decades (Beren son, "Tight US Job Market Adds To Jitters Among Consumers," New York T imes, March 01, 2003, Sec.
What You Can and Cannot Do at Work Having to carry out a "reduction in force" (RIF) is difficult enough from a strictly human and economic perspective, and made only more so by the potential discrimination and other claims that "RIFed" employees may br ing as a result. This article will discuss three RIF-related legal issue s: the legal components of a claim; The fourth element may be established "through circumstantial evidence that the plaintiff was treated less favorably than employees in non-prot ected groups during the reduction in force. In the Bost case, the plaintiff attempted to show that his discharge was inconsistent with the RIF criteria. He did this by presenting evidence t hat he was a good, or even exceptional, employee who produced large prof its for the company. Headco admitted that the plaintiff was a good emplo yee, but justified its decision by the cost of retaining him: he was the second- highest paid employee in his section and had a company car and expense account. Another issue in the case was whether the plaintiff was "similarly situat ed" to younger employees who were retained. The company argued he was no t, because the plaintiff and the other employees had different superviso rs. However, the court decided that because there was evidence suggestin g a high level of involvement in all decisions by the same executive. This case was a motion for summary judgment, so all the court was decidin g was that the plaintiff presented enough evidence to avoid having his c omplaint dismissed. Nonetheless, the case does set forth the legal compo nents of a discrimination claim in the context of a RIF and some of the facts and issues that a RIFed employee may raise to prove his or her cla im. RIFed employees may still be eligible for unemployment compensation. The issue in the c ase was whether the employee "had left work without good cause." As part o f the cost cutting measure, Telemundo sent certain employees letters exp laining the terms of a voluntary buyout agreement. The plaintiff accepte d the buyout package and signed the agreement. Two months later, she app lied for unemployment benefits which the UAC denied. The buyout agreemen t stated that it would not interfere with applications for unemployment and those who accepted the buyout would acquire layoff status. The compa ny's HR representatives said that employees accepting the agreement woul d be considered "laid off" for unemployment purposes. " (most if not all state unemployment compensation statutes have the same wording) and said that the commission's interpretation was too str ict. The court said: "Employers are to be held accountable for their act ions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layof fs, buyouts or other company initiated programs." A company's inconsistent explanations for its decision not to rehire the plaintiff call into question the credibility of its alleged explanation, the Seventh Circuit ruled in Zaccagnini v Chas. The plaintiff, a truck driver, had been discharged in a RIF. He claimed C LCC failed to rehire him because of his age (51). At the time of his lay off, the plaintiff told the VP of operations that he would like to be re hired should the company's need for drivers change. The plaintiff said t hat the VP told him that if CLCC were in the position to hire drivers in the future, he would rehire him. A few months later, the company's busi ness did improve, and it hired four new drivers, whose ages were 30, 35, 31 and 32. When the plaintiff complained, he was told that his layoff had been revie wed, the company had the right to recall or not recall drivers, and no l aid off driver had been recalled, nor were there any plans to recall any of them. The district court found these to be legitimate, nondiscrimina tory reasons not to rehire the plaintiff and so awarded summary judgment to CCLC. ") However, in replying to the plaintiff's motion fo r summary judgment, the company said that the reason it did not rehire t he plaintiff was because he was not referred to it by the union. ") Moreover, CLCC's o wn human resources policy explicitly allowed for the rehire of former em ployees.
was not rehired because he was not ref erred by the union--is unworthy of credence because CLCC did not rely on this second explanation until its reply brief at summary judgment.
" With respect to the VP's alleged statement to rehire the plaintiff, the c ourt of appeals did say: "Although this assurance is not sufficiently co ncrete to constitute an offer, in combination with other evidence it may indicate some flexibility in the company's rehire policies."
failure to bring any evidence regarding age does not defeat his cla im per se, the special virtue of the indirect method of proof is that it allows victims of age discrimination to prevail without presenting any evidence that age was a determining factor in the employer's motivation.
Abercrombie & Fitch, the clothing raetailer, has recently been in the new s for being sued for discrimination. This raises a fundamental question: Can employers hire on the basis of looks? There is no question that employers cannot hire (or refuse to hire) emplo yees on the basis of sex, race, age, disability and other protected char acteristics. At the same time, however, neither is there any question th at employers may have and enforce "grooming" (appearance) codes. The EEOC Guidelines on Discrimination Because of Sex state that the "refu sal to hire an individual because of the preferences of coworkers, the e mployer, clients or customers" violates Title VII, unless it is a BFOQ. The guidelines on national origin discrimination define national origin d iscrimination "broadly as including, but not limited to, the denial of e qual employment opportunity because of an individual's, or his or her an cestor's, place of origin; or because an individual has the physical, cu ltural or linguistic characteristics of a national origin group." In addition to forbidding discrimination on the basis of physica l characteristics, the national origin guidelines as state that height a nd weight requirements will be subject to an adverse impact analysis. At least one provision of the EEOC age discrimination regulations seems p retty strongly to prohibit hiring on the basis of appearance. Whether or not this is the case (age is a BFOQ) is determined on a case-by-case basis. Finally, the regulations implementing the Americans With Disabilities Act simply and flatly state: "It is unlawful for a covered entity to discri minate on the basis of disability against a qualified individual with a disability." At first glance, the ADA would appear to be no bar to hirin g on the basis of appearance: after all, being unattractive or ugly is n ot a disability. However, this is not the case, for at least two reasons . First, aside from arguably making a person unattractive, obesity is ge nerally a covered disability under the ADA. Therefore, if a plaintiff al leged that s/he was not hired because s/he was obese and her obesity mad e her unattractive to the employer, s/he could state an ADA claim. Secon d, the definition of disability includes the perception of disability an d an employer certainly could not refuse to hire an applicant, for examp le, whose disability left him or her disfigured, without risking an ADA suit. This precise question does not seem to be addressed in the reported cases (at least none that the author could find). Even the lawsuit against A& F is not premised on discrimination on the basis of appearance: it alleg es race and national origin discrimination (and perhaps could also have alleged age discrimination as well). What case law is available seems to establish this principle: discrimination on the...
|
http://csua.com/feed/