Homework Help - Human Resources, Avoiding Discrimination Suits During Layoffs

[isissxn]

This week in my Human Resources class (freshly started), we are focusing on downsizing and layoffs. One of the trickiest situations a company can find itself in is one in which people are being laid off while hiring is also occurring. I'm to brainstorm some ways my hypothetical company could protect itself from discrimination suits while navigating such a situation. Obviously EEO laws are ruling the day here, but we're talking a little beyond that.

So, I'm starting with the notion that we should analyze selection methods to make sure none of them are unintentionally discriminatory. But I have very little real-world experience with large or, frankly, properly managed businesses. So, can anyone help guide me in the direction of putting a finer point on that concept?

I just keep finding myself leaning toward ideas like "make sure no one you lay off is a Mexican lesbian in a wheelchair whose position you fill with a strong white man," but that is overly simplistic and obviously unhelpful. Does anyone feel like easing me in the right direction with slightly more elaborate thinking?

[theprestige]

No real company is going to lay off and hire for the same position at the same time.

You're laying off one division of the company. As long as the layoff criteria are business-based and non-discriminatory, you're fine there.

You're hiring in another division. As long as the hiring criteria are non-discriminatory, you're fine there as well.

I'd focus on processes to prevent discrimination of employees who are getting laid off and applying for jobs in the division that's hiring.

One thing to consider is how you handle preference of current employees versus outside applicants.

[Brainster]

It would probably make sense to compile the demographics of those being let go, versus those being kept on. If you can show that the proportions are roughly similar, that should help prove that the decisions were made on a non-discriminatory basis. If they are not, then you should examine whether there is an alternative explanation other than discrimination for the disproportionate numbers.

Also, be sure to document everything that you do. For example, it is not uncommon to offer good employees a transfer within the company instead of a layoff. If the employee turns that opportunity down you have a very strong case to make that you were trying hard to keep the employee rather than firing them due to their demographics.

[Greebo]

Originally Posted by theprestige

No real company is going to lay off and hire for the same position at the same time.

<snip>

I've actually been in that situation, I was recruited to a companies IT department where my skills were in short supply. Other guys whose skills were in surplus, were being made redundant.
This was in the UK where it is the job that is made redundant, not the person (in case it differs in other places).

[bluesjnr]

Conduct a desk top review based on key performance indicators and agree in advance what that criteria for redundancy is - identified gender, race, religion or sexuality should not even enter in to conversation. State this criteria clearly and unambiguously to all under threat. Some areas for consideration.

Length of Service
Attendance
Disciplinary Record
Annual appraisals
Job KPI's and personal performance in relation to these.

Obviously, this list is far from exhaustive.

[Brainster]

Originally Posted by Greebo

I've actually been in that situation, I was recruited to a companies IT department where my skills were in short supply. Other guys whose skills were in surplus, were being made redundant.

The point he was making is that it makes no sense to be laying off people for the exact same job that you are hiring people for. Different skills mean you are not taking the exact same job, even though the pay and the cubicle may be the same.

[isissxn]

Wow, all of this is really helpful. Thank you guys! I'm hoping this sort of thinking starts to feel a bit more natural to me soon, because I'm half-planning to seek employment in HR upon graduation. I'll need much more confidence to make that a reality. Oh well, it's only the second week of class.

[Loss Leader]

Originally Posted by isissxn

Wow, all of this is really helpful. Thank you guys! I'm hoping this sort of thinking starts to feel a bit more natural to me soon, because I'm half-planning to seek employment in HR upon graduation. I'll need much more confidence to make that a reality. Oh well, it's only the second week of class.

The main rule of HR is to document, document, document. Write down your firing criteria, write down how each person matches it. And remember that your criteria don't have to just sound neutral, they have to have a neutral impact. If you practice a last-in-first-out method and your company has had a large influx of minorities (due to a hiring initiative or something), it may be discriminatory to let them go before the white people.

The one thing that I would not ever do is document a person's race, religion, sexuality, disability, etc.. Never keep written records of any of that. That way, when the company gets sued, they can honestly say that they had no idea of the demographics of their dismissed employees.

In fact, I had a case once where my client company was being sued for discrimination against her because she was black. The local EEOC asked us for a list of all our employees by race. I had the HR person compile the list, but then had her add, "These designations are being made by me for the very first time here. The company keeps no records of such things. I have not asked a single employee his/her race. I have absolutely no special skill in determining race or ethnicity. I have not shared this list with any other person in the company. It may be entirely erroneous and I specifically do not affirm that it is in any way accurate."

[rjh01]

There is one thing you should know about and that is indirect discrimination. This can happen if you are treating everyone equally! If for example one minor part of a job requires physical strength you might require all people to be physically strong. However that would be indirect discrimination against females who, on average, are less strong then men. Or if you are laying off workers on a strict last in, first out then you might be discriminating against certain minority groups if you recently ceased discriminating against certain minority groups when hiring as you would decrease the % of minority groups in the workforce.

[shuttlt]

Originally Posted by Loss Leader

The main rule of HR is to document, document, document. Write down your firing criteria, write down how each person matches it. And remember that your criteria don't have to just sound neutral, they have to have a neutral impact. If you practice a last-in-first-out method and your company has had a large influx of minorities (due to a hiring initiative or something), it may be discriminatory to let them go before the white people.."

Can this be true? Most rational methods of selection are going to have a disproportionate effect. In your example getting rid of less experienced workers would disproportionately impact the minorities, getting rid of more highly paid but experienced people in the same roles that these minorities were filling will disproportionately disadvantage white people. I realize we are talking about permanent employees, but in my line of work that would make trying to reduce the number of contractors almost by definition discriminatory against Indians.

[Startz]

Originally Posted by Loss Leader

The one thing that I would not ever do is document a person's race, religion, sexuality, disability, etc.. Never keep written records of any of that. That way, when the company gets sued, they can honestly say that they had no idea of the demographics of their dismissed employees.

Many companies in the United States are required to track race and gender, no? (https://www.eeoc.gov/employers/reporting.cfm)

[Loss Leader]

Originally Posted by Startz

Many companies in the United States are required to track race and gender, no? (https://www.eeoc.gov/employers/reporting.cfm)

Race and ethnicity for employers of over 100 W2 employees. But you're right, I don't know enough about employment law to understand how employers are supposed to collect that information in a non-discriminatory manner. And, so far, the internet has not been my friend on this.

[Skeptic Ginger]

Originally Posted by isissxn

....I just keep finding myself leaning toward ideas like "make sure no one you lay off is a Mexican lesbian in a wheelchair whose position you fill with a strong white man," but that is overly simplistic and obviously unhelpful. ...

It would also get you a failing grade on the assignment but I'm sure you know that.

[Startz]

Originally Posted by Loss Leader

Race and ethnicity for employers of over 100 W2 employees. But you're right, I don't know enough about employment law to understand how employers are supposed to collect that information in a non-discriminatory manner. And, so far, the internet has not been my friend on this.

I find all this pretty confusing too. Most large organizations are affirmative action employers. That means you are required by federal law to practice affirmative action but you are forbidden to discriminate. In practice, that can mean that you search more aggressively for underrepresented groups but you can't make the hiring decision based on race, etc.

At my university all candidates for academic positions are asked to volunteer demographic data. But the hiring committees aren't allowed to see the data. Doesn't make sense to me, but that's the way it is.

[Loss Leader]

Originally Posted by Startz

I find all this pretty confusing too. Most large organizations are affirmative action employers. That means you are required by federal law to practice affirmative action but you are forbidden to discriminate. In practice, that can mean that you search more aggressively for underrepresented groups but you can't make the hiring decision based on race, etc.

At my university all candidates for academic positions are asked to volunteer demographic data. But the hiring committees aren't allowed to see the data. Doesn't make sense to me, but that's the way it is.

So far, the only place on the web that discusses how to fulfill the EEOC survey requirement is a specialized site for HR people for which you need to be a paying member.

[isissxn]

I'll post what I ended up going with once it's graded - should be tomorrow. I'll post the grade as well, of course.

The question was pretty vague, but I think I made something resembling good points in response.

[P.J. Denyer]

Originally Posted by bluesjnr

Conduct a desk top review based on key performance indicators and agree in advance what that criteria for redundancy is - identified gender, race, religion or sexuality should not even enter in to conversation. State this criteria clearly and unambiguously to all under threat. Some areas for consideration.

Length of Service
Attendance
Disciplinary Record
Annual appraisals
Job KPI's and personal performance in relation to these.

Obviously, this list is far from exhaustive.

Having the decision maker work from anonymised data with no identifiers for protected categories would also help, if practical or even possible.

[Wudang]

People are never ever made redundant (from HR pov). Their positions are made redundant. In the UK you have to give the people whose positions are being made redundant the chance to apply for positions that may have opened up elsewhere in the company. So for example the 600 Sheffield IT staff made redun.. whose positions were made redundant by HSBC, were allowed to apply for other roles in the company they might be suitable for.
The HR head of a company explained to a close friend who was a manager with a problem employee that the primary purpose of HR was to protect the company from being sued or fined for breaches of employment law. The rest is window dressing.

True story: during my notice period with HSBC while I was doing skills transfer to the guys in Guangzhou a delivery driver asked if I'd take a parcel for a new neighbour. I did and when the guy got home I took the parcel across which was a 12-pack of wine. He told me his company bought it for him.
Me "Nice. Who are they and are the hiring?"
Him "HSBC and yes we are"
Awkward pause. I mentioned my situation and how I'd dodged a bullet with IBM years back and he told me of his experience and turns out we have a friend in common. But my skills aren't in Asset Risk. Ass Risk maybe depending on how much I've drunk.

[Vixen]

(a) Ask for voluntary lay-offs

(b) Make sure your selection criteria are objective

(c) If there is an example of possible bias (keeping on someone who has scored less than another who is made compulsorily redundant), make sure you can explain why that person is 'red-ringed'. (Special skills/qualifications, etc.)

[TruthJonsen]

You could get some ideas by studying the IBM missteps. I cannot post links yet, but currently they have a situation going on about age discrimination which is illegal in the US. An excerpt:

After another round of company-wide layoffs, IBM is being sued in federal court for age discrimination. The lawsuit claims that in its push to hire millennials, the company is letting go of more experienced workers. According to a ProPublica/Mother Jones report, IBM has cut "an estimated 20,000 U.S. employees ages 40 and over since 2014, about 60 percent of its American job cuts during those years."

They laid me off in the 2010 time-frame. At that time, the goal was to replace us with cheaper Asian labor. I was 57, better educated, better skilled and responsible for several important software patents. I had to train the Asian workers.

Lou Gerstner was hired as CEO in 1993. The era of extreme corporate executive greed was just starting. Our pensions and medical were cut drastically, layoffs and reduced severance pay became routine. It is sad that this once great, innovative company fell into the trap of believing management structure was more important than letting talented technical people innovate. It was an odd time then. Not a day would go by that you were not pummeled with "Diversity this, Diversity that" but apparently age diversity was not important.

[Molinaro]

Originally Posted by theprestige

No real company is going to lay off and hire for the same position at the same time.

As the kids would say... lolwut?

Lay off long term employees who have had many raises over the years and replace them with new hires at entry level wages.

Not exactly a rare thing for a company to do for non-business critical positions.