At the beginning of the COVID-19 pandemic, Long Island employment lawyers Famighetti & Weinick PLLC published information on our website warning that the financial impact of the pandemic could be used by employers to conduct unlawful discriminatory layoffs. Indeed, the firm has seen this scenario play out. On June 7, 2021, the New York State Division of Human Rights issued a determination of Probable Cause, in a case filed by Famighetti & Weinick PLLC alleging that the client’s inclusion in a reduction in force plan constituted discrimination based on age and/or disability. Today’s Long Island employment blog discusses this decision.
According to the New York State Division of Human Rights, the employee worked for a Long Island medical provider for 34 years and was 70 years old. After the pandemic started, the company implemented a reduction in force plan which included the 70 year old employee. The employee alleged that she was replaced with a younger employee who had less experience, showing her inclusion in the plan was pre-text for discrimination. But, the company alleged 28 employees in total were terminated and their ages ranged from 20 to 79, undermining a claim that age played in role in termination decisions.
During the Division’s investigation, it learned that the employee’s position was indeed given to a younger employee with much less experience. The company argued the decision was based on the replacement’s efficiency as compared to the terminated employee, but could not articulate any demonstrable basis for this comparison.
Later in the investigation, the company provided statistics which it argued showed that the terminated employee’s work productivity was not as good as other retained employees and that those statistics supported the legitimacy of the employee’s termination. But, F&W pointed out that the statistics did not account for a medical leave of absence the employee took during the comparison period. In other words, if true that the company compared work productivity of employees without considering the terminated employee’s medical leave absence, then the employee was penalized for treating a medical condition.
Based on the information gathered during the course of the investigation, the State Division determined that it could not find that age and disability were not a factor in the termination decision. The Division specifically noted that if the company did not account for the time that the employee was on medical leave, then its decision may be unlawful disability discrimination.
After considering the facts discovered in the course of its investigation, the State Division found that Probable Cause exists to support the allegations of the complaint. The case will be sent to one of the Division of Human Rights Administrative Law Judges to set a hearing date. At the hearing, F&W will present the evidence and the judge will make the final determination of whether discrimination took place.
Evidence of workplace discrimination often consists only of circumstantial evidence. Direct evidence of discrimination is rare. In this case, the State Division was persuaded by several pieces of circumstantial evidence, including that an older employee was replaced by a younger employee, and that the employer’s reasons for terminating the employee just did not add up.
If you think you’ve been selected for termination as part of a reduction in force plan based on an unlawful reason, such as disability, age, race, religion, or sex, speak to an experienced employment law attorney to discuss your rights. The Long Island employment law firm Famighetti & Weinick PLLC are experienced in such cases and offer free case evaluations for workplace discrimination cases.
Our phone number is 631-352-0050. More information about unlawful employment discrimination, unlawful layoffs, and wrongful terminations is available on our website at http://linycemploymentlaw.com.