October 2, 2018

Today’s tip of the week involves downsizing and how it can go very wrong for an employer.  Recently, a parking company was sued by the Equal Employment Opportunity Commission (EEOC) for national origin discrimination.  The company installed automated payment machines at the exit to their parking ramps and so had laid off a few employees whose roles had now been replaced with these machines.  The company laid off a Moroccan customer service representative, a Moroccan cashier and an Ethiopian cashier.  The Ethiopian cashier happened to ask the company why only certain people had been terminated, to which the company’s operations manager responded that it was due to their “broken English”.  The lesson here is to ensure that when you are making decisions about which employees get downsized, you are not either intentionally or unintentionally targeting a specific group of individuals based on their protected class.  Here, the protected class was national origin and the discrimination stems the company’s admitted motivation to terminate the employees based on having a foreign accent and not speaking perfect English.  Remember, employers can require that an employee speak fluent English, but only if fluency in English is necessary to perform the job effectively.  Here, there was nothing in the record that showed fluency was required or that there were any problems with the employees’ performance based on their accents or “broken English”, so the employer now gets to defend this lawsuit.  If you are concerned about an upcoming downsizing and want to ensure your company stays compliant with all applicable laws, contact one of our attorneys at myHRcounsel at the beginning stages to ensure everything is done properly.

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