- A laboratory technician was unable to establish that she would have been spared a layoff were it not for her arthritis, the 7th U.S. Circuit Court of Appeals ruled (McCann v. Badger Mining Company, No. 19-2420 (7th Cir. July 14, 2020)).
- Rae McCann worked in the research and development department of Badger Mining Company. Shortly after she took leave to treat arthritis in her hands, the company initiated downsizing efforts. McCann was among those laid off. She alleged her termination was discriminatory on the basis of her disability.
- To support this claim, McCann argued the reasons her employer used to defend her termination were pretext. Chiefly, McCann took issue with Badger's conclusion that she could not perform one of the duties integral to her position as independently as another worker, whom it did not lay off. But, as the court pointed out, McCann's managers had already sought out another worker to take over this duty before layoffs were a consideration.
Layoffs can create compliance minefields for HR departments.
First, employers must heed requirements such as those levied by the Worker Adjustment and Retraining Notification Act. This law requires employers to give workers advance notice of at least 60 calendar days before "qualified plant closings and mass layoffs," according to guidance from the U.S. Department of Labor.
"A covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site... if these employees represent at least 33 percent of the employer's workforce where the layoff will occur, and the layoff results in an employment loss for more than six months," the agency stipulates.
When deciding whom to lay off, HR must refrain from discriminatory decision making, sources previously told HR Dive. An employer may not, for instance, fire all older workers; in fact, the Age Discrimination in Employment Act has special requirements for layoffs. While seniority, job performance or skills make acceptable criteria for determining whom to let go, HR must make sure it distributes terminations based on those characteristics, watching carefully for disparate impact on protected classes
To defend layoff selections, employers will benefit from robust documentation. The 8th Circuit last year found an employer's detailed layoff plans were sufficient to defeat a worker's claim of discrimination following her termination.