It is perfectly legal for an employer to implement layoffs of its workforce unless this right is limited by an express or implied contract to employ a worker for a set period of time or if the duration of employment and termination terms are protected by the collective bargaining agreement between an employee, a union member, and the employer. This makes sense as the owner of the business should have freedom to choose to reduce its workforce for legitimate business reasons.
However, workforce reduction is illegal if discriminatory criteria are applied to selecting which employees stay and which have to go. In other words, if the employer tries to disguise his desire to get rid of workers who are members of a certain protected class (gender, race, religion, disability, ethnic origin, etc…) this is unlawful discrimination.
It is not easy to determine whether the layoff is legitimate or it’s just another form of workplace discrimination, as direct evidence of the employer’s motive, such as admissions, is rarely available for obvious reasons. However, there are certain signs that should create suspicion and case doubt on the legality of a layoff. Here are four general questions that should be asked to determine whether the discrimination likely took place during your layoff:
1. Was there a mass lay-off or were you the only member (or one of the few members) of a protected class in your department who was terminated? Were you the only significantly older employee, or an employee of color/national origin/non-traditional sexual orientation at workplace?
2. Was your position really eliminated’ or was someone else of hired in your place, was given essential the same duties under essentially the same position?
3. Has any other worker, in the same protected class as you are, been laid off at or near the time that your employment was terminated?
4. How did the employer determine which employees to retain and which workers to lay off? Was the selection discriminatory, or was the process supported by legitimate business reason, such as retaining the most experienced or the best performing workers, or eliminating the employees with the highest compensation?
The answers to the above questions should shed more light on the legitimacy of the layoff at workplace and reveal possible discrimination and wrongful termination.