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Layoff seems to target certain type of employee. But may not qualify as discrimination. Might there be a case?

Los Angeles, CA |

Big utility company's IT dept is downsizing by 20% (about 300 people) and outsourcing these jobs. I am one of 3 people in my group who were laid off. I am 60 years old, the other 2 are in their 50's. I have worked at company for two years. We 3 are sometimes more "outspoken" in that we identify task-related problems and get things done. We are active, while others are lazy, and I feel we were singled out because we challenged the lazy atmosphere mgmt has enjoyed, or mid-mgmt were trying to protect their positions.

I was told my position was being eliminated, but a coworker told me they actually replaced me with a person from another dept.

Smells fishy. Appears my position wasn't actually downsized.
Wondering if there could be a possible wrongful termination case here.

Attorney Answers 4

  1. To best determine that it is necessary to know the characteristics of the individual that replaced you. For example, if they replaced you with someone much younger than you it could be age discrimination. Do you have that information?

    My answering this question does not form an attorney-client relationship. Always retain a qualified attorney before taking any action. My office offers free consultations.

  2. It is unlawful to discriminate against a person because of his or her age (over 40) and other protected classes: age, race, gender, religion, medical condition, pregnancy, etc., but it is not unlaw ful to discriminate against a person or persons BECAUSE they are "outspoken" about tasks, etc., unless they are being "outspoken" about a violation of their legal rights (example: overtime, etc.)

  3. A layoff cannot be used as a pretext for age discrimination. These cases are tough because the employer claims that the employee was laid off, and companies are allowed to lay off employees. If you can show that there really was not a layoff -- another employee took your same job duties, that goes a long ways towards proving pretext -- that the company's reason for the termination is false. If you have enough evidence that the layoff is pretextual, you may be able to convince (first the judge) and then a jury that the real reason for the termination was age discrimination.

  4. It is illegal in California to get rid of older workers because they are older, or because they make more money as a group. Employers cannot use a reduction in force as an excuse to rid itself of older workers.

    The challenge is in the proof. The employer can't simply rely on a lay off; it must explain why it chose the people it did. If it can articulate a legitimate, nondiscriminatory reason for its decision, the burden then shifts to you to prove that its reason is pretextual. That is usually done by showing that the reasons they put forward are not true.

    It is also illegal to lay off that many workers without giving 60 days notice. I assume they gave you proper notice, but if they did not, they may be a violation of Cal-WARN.

    It is not illegal to lay you off for "identify[ing] task related problems, or for "challeng[ing] the lazy atmosphere." Those would be illegal, although they would also be bad decisions.

    I hope this information is helpful to you.

    Craig T. Byrnes

    Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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