Why me?

"Why me?"  It's the most basic question in challenging a RIF, but it may be harder to answer than employers think.  Poor scores or evaluations alone will not be enough.

The importance of well-reasoned RIFs is clearly demonstrated in EEOC v. Boeing Co., decided April 8, 2009.  Boeing selected two female employees, Antonia Castron and Renee Wrede,  for lay-off based on their low scores on reduction in force assessments.  The two employees then filed charges of gender discrimination with the Equal Employment Opportunity Commission (the "EEOC"), which filed suit against Boeing.   The court found that the EEOC had presented sufficient evidence to proceed with its claims based on the following:

Antonia Castron:

- Derogatory and demeaning remarks made by one supervisor, although not directed at Castron, were possible evidence of discrimination.

- Castron's former supervisor had possibly induced Castron to accept a transfer by promising that she would not be laid off during training.  However, once training was completed, her employment was terminated based on an evaluation by her new supervisor.

- The new supervisor's evaluation of Castron was suspect because he did not solicit Castron trainer's input or take into consideration her past performance.  Notably, the court considered co-worker testimony that the supervisor treated Castron unfairly.

Renee Wrede:

- One year after filing a sexual harassment claim, which Boeing substantiated, Wrede received lower scores in her RIF evaluation and was eventually terminated.

- Male employees who received lower RIF scores were not terminated, but instead found other positions in Boeing, partly due to supervisor assistance that was not extended to Wrede.

- The court noted that the fact that the same actors who ultimately downgraded Wrede's review previously gave her scores high enough to avoid a RIF could create an inference that no discrimination took place.  However, the inference in this case was weaker as applied to less overtly positive employment decisions, such as refraining from firing an employee or giving a "lukewarm" review, as compared to positive decisions such as promotion.  The court explained "[e]ven an extremely biased supervisor who would never hire or promote members of a particular protected class might still act cautiously by lowering an existing employee's scores over time."

- In some instances, the evaluators could not explain or support the downgraded scores, which were refuted by co-workers.

Employers implementing a reduction in force can learn some important lessons from this decision.  An inference of discrimination can be created  by:  a discriminatory environment based on even non-specific comments about a protected class;  assurances, such as of job security, that are later broken;  unsubstantiated negative evaluations; a disregard of co-worker assessments; and, favoritism. 

Front line supervisors must be able to substantiate their decisions objectively.  Management cannot rely on poor evaluations or RIF assessments only without testing the supervisor's decision.  Courts and juries will not accept explanations of adverse employment decisions on their face, and in the absence of credible substantiation, will attribute suspect and even discriminatory motives to employers.

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