Due to the coronavirus, employers are given the green light to let go of anyone in their company without the worry of being sued for discrimination whether it is pregnancy, race, or disability related. All they have to do is make it seem that it is virus related which is not hard to do.
This has quickly become a dangerous grey area in the law. Here’s a break down of what employers and employees need to know.
Example: Employee is a troublemaker but tolerable. Management wants to terminate but employee just notified management that they are pregnant and the brakes are put on the pregnant employee’s termination. COVID strikes. Downsizing is required. Time to get rid of the troublemaker?
When the COVID-19 chapter is finished and the courts reopen— should companies expect discriminatory termination claims?
An employee may concede the business necessity of a large-scale layoff while maintaining a claim that the decision to include her, in particular, in the laid-off group was premised on unlawful grounds.Morris v. ADC Telecommunications, No. EP-09-CV-242-KC, 2010 WL 3211166, at *5 (W.D. Tex. Aug. 10, 2010).
But, proving that an employer chose to terminate a particular employee for retaliatory reasons, and not merely economic ones, is difficult and rarely successful in the context of wider layoffs.
Courts analyze discrimination claims through the analytical framework set forth by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973).
- The employee must set forth “prima facie” evidence that his employer has retaliated against him for protected activity. That the employee engaged in protected activity and was subsequently terminated clearly suffices.
- If the employee establishes such a prima facie case, it becomes the employer’s burden to put forth a legitimate, non-discriminatory explanation for the termination. That the employee was terminated for economic reasons clearly suffices. It then falls to the employee to rebut the employer’s explanation and demonstrate that the termination actually based on a discriminatory motive, and not merely an economic one.
- It is at this third step where employees usually fail. Once the employer has established that it laid off multiple employee, it is often difficult, if not impossible, to muster evidence that the plaintiff was terminated not merely for reasons of economic necessity, but rather because of discrimination.
But the claims are potentially viable. Here is what has to be done on both sides.
For employees who still have their jobs but suspect discriminatory selection practices are occurring:
- Take extra precautions to eliminate any possible justification for termination. Whatever your duties may be in the present circumstances, while working from home or operating under diminished capacity, or whatever the case may be, if you can, it would be advisable to give 110%.
- To the extent that employees are permitted access documents from their workplace in their present circumstances, they should save any records that may be relevant to an eventual claim, such as performance reviews, email correspondence with supervisors or coworkers, etc.
- Even when working from home, keep in touch with coworkers to maintain avenues for information sharing. If terminated, it will be important to have comparative data about the employees who were laid off and those who were not.
Employers facing tough decisions, and for whom defense costs are the last thing they need right now:
- Ensure that employees are selected for termination based on objective and articulable criteria. Employers should aim to be able to show not only that layoffs were economically necessary, but also that a particular employee was selected for inclusion in the laid-off group for legitimate reasons.
- Ensure that there is no disparate treatment among the employees subject to layoffs. Any terminated employees should be treated in the same manner, and provided the same communications, as all other employees.