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METHOD OF EMPLOYEE TERMINATION CAN BE DISCRIMINATORY By Zachary Tuck, Esq. of Rudolph Friedmann LLP - Boston Massachusetts


By Zachary Tuck, Esq.
It is common knowledge among employers that it is impermissible to terminate an employee for discriminatory reasons such as the employee's race, gender, religion, or national origin. However, it is important for employers to recognize that not only can the reason for an employee's termination be viewed as discriminatory, but the method by which that employee is terminated can also subject the employer to liability. The recent case of Trustees of Health and Hospitals of the City of Boston, Inc. v. Massachusetts Commission Against Discrimination illustrates this important point.

In the Trustees case, which was decided by the Supreme Judicial Court of Massachusetts in August 2007, five female African-American employees were among eight employees laid off by the employer. It was undisputed that the reason for the layoffs was non-discriminatory. However, the African-American employees challenged the manner in which they were fired, specifically the way they were treated by the employer on the day of the actual terminations.

Prior to the terminations, the employer had developed a written procedure stating how the layoffs would be carried out. Under the procedure to be followed, all employees selected for layoffs would receive no advance notice of their firing, and they would be monitored as they gathered their belongings. When the five complainants were informed that they were being laid off, they were told that the terminations were effective immediately. In addition, they were closely monitored as they packed up their belongings, and were immediately escorted from the building without being permitted to say goodbye to co-workers. Generally, the terminated women felt they were treated like criminals, and had been humiliated and degraded in front of their friends and co-workers.

Conversely, one of the other employees included in the same layoff was a white male. Contrary to the written procedure, he was given advance notice of his layoff. In addition, he was not monitored as he cleaned out his desk, and was permitted to walk freely through the building to say goodbye to his co-workers. In defending against the claims of discrimination, the employer claimed that the white male had different job duties and responsibilities than the complainants and did not handle confidential client records.

The Court held in favor of the complaining employees. In support of its decision, the Court concluded that even though the complaining employees and the one white male employee did not have similar jobs with respect to their duties and responsibilities, they were "similarly situated" for the purposes of the implementation of the employer's layoff procedure. This comparison of "similarly situated" employees is often a critical factor in the analysis of an employment discrimination lawsuit.

The Court ruled that the differences in job duties and responsibilities between the white male and the female African-American complainants had nothing to do with why the white male received more dignified treatment at the time of the layoffs. The Court further noted that only two of the complainants actually had jobs with access to confidential records, and that in any event the written procedure made no distinction about how the layoffs were to be carried out for employees who handled confidential records versus those who didn't.

One lesson for employers is that if a written procedure is used to dictate how employee terminations are to be carried out, it is crucial to ensure that the procedure is followed uniformly and fairly. While it is certainly permissible to devise different layoff procedures for different categories of employees and different situations, the differences must arise from legitimate, non-discriminatory business concerns. If a written procedure is created, it should set forth the categories of employees and types of situations where close monitoring or other potentially objectionable means of protecting the employer's legitimate business interests are to be utilized.

In the Trustees case, the outcome might have been different if the only employees closely monitored were those who did handle confidential records. However, the absence of a legitimate reason for the differential and harsh treatment of all the African-American employees made it obvious, in the Court's view, that the only explanation for treating the five complainants differently was their race. Because of its failure to ensure that all employees were treated fairly and respectfully in the particular situation, the employer paid a heavy price which could have easily been avoided.