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Can Employers Use Subjective Criteria in Layoff Decisions?


If your employer decides, for financial reasons, to reduce the number of employees in order to cut costs, that is referred to as a reduction-in-force. For individuals who believe they were terminated for discriminatory reasons, but that termination occurs during a reduction-in-force, there will be certain challenges in bringing that type of claim. One of the issues that often arises in reduction-in-force cases is whether the decision makers can use subjective criteria in deciding who to lay off. Our Birmingham employment lawyers can help you determine whether you have an employment discrimination claim.

Why reduction-in-force cases are challenging

Reduction-in-force (RIF) cases can be very challenging when it comes to proving discriminatory demotion or termination. This is mainly true because the employer typically has what appears to be a legitimate business reason for the demotion or termination. Proving otherwise is often difficult. These types of claims most often revolve around the issue of pretext. Pretext, in employment cases, means the reason the employer gives for terminating an employee is not the real reason. Instead, the reason was discriminatory bias.

Can the use of subjective criteria create an inference of discrimination?

It is reasonable that the use of subjective criteria in making employment decisions could be used to camouflage discriminatory bias. For that reason, subjective decision making in this context must be carefully scrutinized by courts. However, the mere use of subjective criteria in evaluating employees does not alone establish discrimination or even create an inference of discriminatory bias that must be overcome. For sure, it makes the determination more difficult.

Beck v. Buckeye Pipeline Services Co.

The Sixth Circuit Case Beck v. Buckeye Pipeline Services Co. dealt with the question of the use of subjective criteria during a reduction-in-force and whether the use of such criteria created an inference that the employee had been singled out for termination because of her age or gender. The court, in that case, agreed that subjective criteria can be problematic in these cases, but using it does not establish per se discrimination. Instead, the court looks at several factors to determine whether discrimination occurred. In that case, the court considered the fact that there was no evidence of a disproportionately high number of women or employees over age 40 who were terminated during the reduction-in-force. Also, there was no evidence that the use of these subjective evaluation criteria deviated from its normal decision-making process.

How do I know if I have a claim?

There are certain facts you can look at in determining whether you may have a discrimination claim despite being terminated during a reduction-in-force. Our Birmingham employment lawyers suggest analyzing the demographics of the workforce before and after the layoffs. These demographics can be examined company-wide, by department, and by job function. If overall, the reduction-in-force disproportionately affected certain protected groups of people, such as women or minorities, then the employer’s justification may be harder to prove. If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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