Monday, February 22, 2010

What's a Poor Corporation to Do When Sued by Its Own Top H.R. Staff?

Over the years, I've represented a number of women who perform all or more than the usual duties of men, but receive significantly less pay and fewer promotions.   The pattern is the same whether representing one woman or many:  The top ranks are dominated by men, while the burden of performing greater work with less opportunity is carried by women stuck in middle management.

In a "dream case" for Plaintiff's lawyers, 4 top Human Resources executives for Dell Computer Corporation have joined to file a class action lawsuit for gender discrimination based on their inside knowledge the lay-off selection process.

 A 14 member all-male Executive Leadership Team that runs the Company. [Yes, Michael Dell is on the Team].   This team laid off 8000 workers in 2007-2008.  The Human Resources executives laid off state they have the hard statistical evidence to show a disproportionate number of women and older workers were targeted to take the brunt of the lay-offs.

Damages sought:  $500 million for the class, based on accruing and future loss wages.  The case was filed in 2008.

Here's the hard reality:  lay-offs become just bigger displays of private, often unconscious but illegal biases. "Undesirables," that is, older or minority workers, are often the last to be hired in a booming economy, and the first to be let go in a recessionary economy.  The employer would like every lay-off to be conclusive evidence of "economic necessity" and will argue that whatever the case for discrimination, the employee would have been terminated anyway for lack of work.  The evidence to overcome that contention may be statistical, that is, intent will be presumed from evidence that the "protected category" of workers would not have been laid off in such large numbers if picked randomly from the work force.

 In an individual "disparate treatment" case, the employee can present evidence that his or her varied work experience, successes at work, education, special classes or "on the job" training, diligence, and adaptability/flexibility for the remaining job tasks all indicate that she was more qualified than the persons retained for the position. She may also show her position was not truly eliminated, but simply modified marginally and given a different title, but still requires many of the same skill sets and tasks as the prior position.  Helpful, but not necessary proof is that a person outside the "protected category" replaced the employee bringing the complaint.

Two fallacies I preach to all employees:  Your "at will" status does not mean you are without legal rights against discrimination, harassment, retaliation, and whistleblower protection.  Secondly, lay-offs can be smokescreens to hide discriminatory and retaliatory motives by supervisors who create "official" paper trails to justify your selection for lay-off.  You can rebut those "reasons" as lies, and win your case.    

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.