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  • © The Regents of the University of California, 2010-2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Recessionary Discrimination

As reported on Law.com, a recently-filed suit accuses Citigroup of using “companywide layoffs during the recent financial turmoil to purge its workforce of scores of female employees to save the jobs of less-qualified men.” This lawsuit took aim at what it called “recessionary discrimination.”

The lawsuit against Citigroup alleges that the firing of a “statistically significant percentage” of female workers compared to the number of men who lost their jobs was not by chance, and that “the disproportionate firing of women occurred because Citigroup let its supervisors and managers select those employees to terminate, enabling them to use their personal preferences and biases in the decisions.”

The type of action alleged in the suit against Citigroup is called “disparate treatment,” which occurs when a member of a protected class receives less favorable treatment than that accorded others. The primary focus of inquiry in such cases is whether the less favorable treatment is based on an unlawful consideration, such as race, color, religion, sex, age, or national origin. International Bhd. of Teamsters v U.S. (1977) 431 US 324, 52 L Ed 2d 396, 97 S Ct 1843.

Liability in a disparate treatment claim depends on whether the protected characteristic actually motivated the employer’s decision; i.e., the protected characteristic must have actually played a role in the employer’s decision-making process and had a determinative influence on the outcome. Reeves v Sanderson Plumbing Prods., Inc. (2000) 530 US 133, 141, 147 L Ed 2d 105, 120 S Ct 2097.

It will be interesting to follow this case and also to see whether other cases alleging recessionary discrimination crop up.

For everything you need to know about bringing and defending wrongful termination based on unlawful discrimination of any kind, CEB has the books: Advising California Employers and Employees, chap 15 (Cal CEB 2005), Wrongful Employment Termination Practice, chap 2 (2d ed Cal CEB 1997), and Handling a Wrongful Termination Action (Cal CEB Action Guide March 2007).

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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