In A Layoff, Be Careful Who You Terminate

“Everyone knows” that employees who are “at will” can be terminated — well, at will.  Except, and a very big “except,” where the anti-discrimination laws apply.  And this blog would be out of business if they didn’t apply to cases often, if not always.   

So here is a short post about who not to fire — or more precisely, what never to do, especially when you fire someone.

The EEOC anounced that a Baltimore garage, the second largest parking garage company in the United States, will pay $155,000 to settle a case in which it was alleged that it terminated three long-term employees based on their national origin.

When it converted to an automated payment system at its garage, the company “terminated a Moroccan customer service representative, a Moroccan cashier, and an Ethiopian cashier, each of whom had worked for the company for about six years.”

Hmmm …. this may very well be a discriminatory firing.  Depends, right?

The EEOC also claimed that “The operations manager mocked the accent of one of the cashiers and, after the three terminations, told the cashier that he selected them for lay off because of their ‘broken English.’”

Ok, no more doubt.

This new settlement gives us the opportunity to briefly note what HR folks should be thinking and doing – and not doing – when layoffs are required.

The garage converted to an automated payment system. Check. It therefore likely needed to terminate a certain number of employees. Check.  So, it fired those employees with “broken English.”

Not good.

Even if you need to lay off employees, you cannot single out, or intentionally fire employees based upon their protected class: race, religion, gender, national origin, age, disability, etc. See Title VII, the ADA, the ADEA, and the other (many) related federal, state and local anti-discrimination laws.

Moreover, you must be cognizant that the employees who you fire are not even unintentionally disproportionately in a protected class – that is called “disparate impact” discrimination.

The takeaway is easy:   EEOC District Director Jamie R. Williamson added, “These long-term employees did their jobs well and were able to communicate with the customers but were laid off based on their national origins or accents – which was unfair and unlawful.”

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]