Elimination of a Position

Sandra Wieskus

We are in the process of combining two departments into one. We currently have a supervisor for each of the departments. The supervisor of the larger department will take over both functions. We are planning to terminate the other supervisor as a result of the elimination of his position. He has been employed with us for 8 years. He has had a relatively uneventful job history with our company. The reason for termination is simply elimination of his position as a result of streamlining our operation. What kind of issues might we run into as a result of this termination?

Don D

This is what you are likely to run into: If the terminated employee can show that he was equally or more qualified for the combined position and he/she is also a protected class employee, he has a potentially valid EEOC charge. It could also hinge on whether or not you are eliminating his particular job or just A supervisory position. Let's say, for example, that both supervisors can handle the new position, no questions about that. Now, you send the one home who is a Mexican-American, 55 year old female with an obvious handicap. You've got problems. If on the other hand, the one you send home is a white, 34 year old male 'with a rather uneventful career history', that makes it a bit less actionable.

In the event of a reduction in force, one of the first things you always do is set up a matrix showing all the demographic factors likely to be affected by the RIF.

Sandra Wieskus

The person we are looking to termiante is a 48-year old black male who has been employed with us for 8 years. The one we are keeping is a 41-year old Hispanic who has been with us for 14 years. Can we still be exposed to a possible EEOC charge?

Don D

>The person we are looking to termiante is a 48-year old black male who
>has been employed with us for 8 years. The one we are keeping is a
>41-year old Hispanic who has been with us for 14 years. Can we still
>be exposed to a possible EEOC charge?


You can always 'be exposed'. What you present does seem to make for a bit less exposure than if the retained guy was a white male aged 33. If the black male does file, you will need to show your total reasoning and logic for your decision, even though the retained man is also minority. The EEOC sometimes will also look at the age difference in terms of years if both are over 40. My recent labor attorney advised that with a sample this small, the EEOC cannot rule age discrimination or disparate impact.

The Hispanic is protected also and has been there longer and the age variance is not that great. One would hope your personnel files contain something that clearly backs your decision up. I would not want to tell the EEOC, "We just did, that's all." Overall, I don't see any hot water on the surface. Both are minorities (today), both are age protected and close to the same age with neither being 'old' (whatever that is), but 14 years on the job is almost twice the 8 the other guy has, which improves your case should you have a charge.

If you have a charge, it's my bet that they will issue a 'no cause' finding.

Down_the_Middle

Sandra:
Two addt'l suggestions that may or not be obvious:
Have sufficient documentation to show that the displaced employee was considered eligible for transfer to another position or department. Being able to show that you considered this person eligible for transfer (whether there was a vancy or not) will strengthen your case b/4 the EEOC. Secondly, include in your RIF communication to the employee that his ability to re-apply in the future is encouraged. If you have a policy permitting reinstatement (with no loss of previous service or benefits) it would also be helpful to communicate that. I've had 2 investigators tell me that with a small layoff group, this helped strengthen the employer's position that the RIF was position specific. For what it may be worth............... Good luck.