- Budget cuts, not bias, prompted the reassignment of a U.S. Forest Service worker, the 2nd U.S. Circuit Court of Appeals has ruled (Reichert v. Perdue, No. 18-2452 (2nd Cir. Sept. 16, 2019)).
- Melissa Reichert sued the U.S. Department of Agriculture (USDA), alleging that her reassignment from forest planner to recreation program manager stemmed from gender and age bias. The district court granted summary judgment to USDA, which the 2nd Circuit affirmed. The 2nd Circuit said USDA had offered "ample" evidence of a "legitimate, non-discriminatory basis" for the job change, including budget declines and rising fixed costs for several years; further budget cuts were projected.
- The pay and grade of Reichert's new position "directly matched" that of her former position, said the 2nd Circuit. The court also noted that the only evidence that supported a gender discrimination claim was a Civil Rights Impact Analysis indicating that the reorganization would have a greater impact on women because most of the affected employees held positions in a unit that was 80% female.
When the reason does not involve a legally protected characteristic such as race, age or gender, employers are generally free to terminate a worker's employment. For example, the 5th U.S. Circuit Court of Appeals recently ruled that a Mississippi deputy clerk was fired because of a budget shortfall, not bias. In another example, a school did not engage in age discrimination when it reassigned a 59-year-old teacher's classes and had her make photocopies. Her teaching responsibilities were assigned to several teachers, most of whom were older than she was, court documents showed.
However, policies and actions by employers that appear to be neutral can be a problem even if there is no intentional discrimination when the activities have a disproportionate impact on a legally protected group. The U.S. Equal Employment Opportunity Commission (EEOC) and many courts have recognized "disparate impact" discrimination, which refers to policies and practices that appear to be neutral on their face but have a significant and adverse impact on a protected group and that cannot be justified by business necessity.
Earlier this year, the Association of Professional Flight Attendants, a union that represents more than 27,000 American Airlines flight attendants, filed a charge with the EEOC alleging that the airline's attendance policy has a disparate impact on women, in violation of Title VII of the Civil Rights Act of 1964.
Compliance and bias training, prompt and thorough investigations of discrimination complaints, and an overall culture intolerant of discrimination and harassment can help companies steer clear of legal actions brought by aggrieved workers.