During my litigation years I often handled age and sex discrimination cases emanating from layoffs produced after an acquisition. Of course the goal is to “leverage” the opportunity which means redundancy must go. Unfortunately, there are in fact cases where management sees it as an opportunity to shape the workforce toward its liking, including any biases that come with it. In the case of Life Technologies Corp. v. Super. Ct. (CA1/1 A131120 7/14/11) http://www.courtinfo.ca.gov/opinions/documents/A131120.PDF the plaintiff claimed he and others over 40 got the squeeze. They used the typical set up–excluded him from opportunities, attacked his performance, demoted him, and eventually fired him for performance. Of course he was denied any severance due his for cause termination.
In order to prove up the disparate impact portion of his case his attorneys wanted to gather answers to the following interrogatories:
(a) The names of all employees terminated during a two-year period, November 1, 2008 to June 28, 2010.
(b) The department each worked for when terminated.
(c) The date of termination.
(d) The age of each at termination.
(e) The reason for termination.
(f) Whether severance benefits were offered.
(g) Whether offered severance benefits were accepted.
(h) A description of any offered severance benefits.
(i) A detailed explanation of reasons for any failure to offer severance benefits.
(j) The identity (including name, address and telephone number) of all former Applied Biosystems employees still employed by LTC after the RIF.
(k) Whether the terminated employees were former employees of Appelera or Applied Biosystems.
In discussing the need for this statistical evidence the court stated as follows:
“Statistical proof is indispensable in a disparate impact case: …”The plaintiff must begin by identifying the specific employment practice that is challenged.”… “Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” […statistical analysis "must show a disparity that is 'sufficiently substantial' as to 'raise such an inference of causation'"] …”a plaintiff will typically have to demonstrate that the disparity in impact is sufficiently large that it is highly unlikely to have occurred at random, and to do so by using one of several tests of statistical significance”….
“Thus, the critical comparison in a disparate impact case is ‘the group that enters’ the [employment] process with the group that emerges from it.” … “The best evidence of discriminatory impact is proof that an employment practice selects members of a protected class . . . in a proportion smaller than in the actual pool of eligible employees.”…
Statistical evidence may also be utilized in a disparate treatment case. However, because discriminatory intent must be shown in such a case, statistical evidence must meet a more exacting standard. “[T]o create an inference of intentional discrimination, statistics must demonstrate a significant disparity and must eliminate nondiscriminatory reasons for the apparent disparity.” ….”statistical evidence is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn.”
“Thus, …although use of statistics is permissible [in a disparate treatment case], statistical evidence ‘rarely suffices to rebut an employer’s legitimate, nondiscriminatory rationale for its decision to dismiss an individual employee.’ …[T]his is so because …in disparate treatment cases, the central focus is less on whether a pattern of discrimination existed [at the company] and more how a particular individual was treated and why. As such, statistical evidence of a company’s general hiring patterns, although relevant, carries less probative weight than it does in a disparate impact case.”
“To some extent, then, the special interrogatories seek information arguably likely to lead to admissible evidence, although some of the information sought (e.g., descriptions of severance benefits) does not appear to be pertinent to any relevant statistical analysis. In any case, our inquiry does not end here because the information sought by the interrogatories implicates significant privacy rights of the third party employees/former employees.”
So what does all of this mean for you? If you are ever involved in one of these suits these are the type of inquiries that will be made. So ask these questions of yourself BEFORE conducting the layoff or termination! Also see the layoff and termination checklists on HR That Works.
