by Ted Olsen
Plaintiffs in employment discrimination cases normally must prove that a non-discriminatory explanation given by the defendant employer for its actions is, in reality, a pretext for unlawful discrimination. Pretext can be shown in a variety of ways. Historically, a showing that the defendant employer did not follow its own policies and procedures, when taking the adverse action being challenged, has been considered to be evidence of pretext. The Tenth Circuit Court of Appeals, in a recent decision, however, indicated that an employer's deviation from its reduction-in-force procedures, by itself, was insufficient to prove that the employer's selection of the plaintiff for layoff was based on illegal age discrimination.
In Hinds v. Sprint/United Mgmt. Co., 2008 U.S. App. LEXIS 8714 (10th Cir. April 22, 2008), a former telecommunications manager filed a lawsuit for age discrimination under the Age Discrimination in Employment Act, after he was separated from his employment when his work group was eliminated in a RIF. The plaintiff proved that the employer had not abided by its own policies and procedures when deciding who it would retain in the downsizing, and argued that this showed pretext. Both the district court and the Court of Appeals rejected this argument, and grated the employer summary judgment. In a very helpful decision for employers, the Court stated, "[T]he mere failure of a company's employees to follow their employer's manuals and written directives, without more, does nothing to suggest discrimination as opposed to perhaps, say, laxity on the part of company employees."
Although the Hinds decision is helpful to employers, it should be relied upon as a last resort. In any downsizing, the procedures put in place by an employer for the assessment and ranking of employees, to determine those employees to be retained and those to be released, should be followed as closely as humanly possible. Hinds simply recognizes that human error, not unlawful discrimination, may explain an employer's breach of policies.
Of course, the Hinds decision does not comment on breach of contract, promissory estoppel, or other state law claims that may create employer liability, if an employer fails to abide by its procedures.
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© 2008 Sherman & Howard L.L.C. May 6, 2008