Discrimination in Employment Layoffs During COVID-19

It is no secret that current COVID-19 pandemic has upended the U.S. economy. Even though some companies have had resources to continue paying their employees, the longer this pandemic continues, the greater the loss of business and revenue becomes. Employee reductions and terminations have been an unfortunate result of the current economic downturn. More and more companies have resorted to layoffs in order to reduce their workforce.

Often, employers terminate or layoff older employees who may even be eligible for retirement, or nearly so, because they have generally been with the company the longest and are also the highest salary makers. Employers make look to terminate individuals who have previously complained of race discrimination or sex harassment.

If you have been terminated or laid-off, you have certain legal protections that make it illegal for an employer to make those decisions based on age, race, sex, national origin, religion, or disability. If you believe that the employer’s decision for your layoff was discriminatory, then you may have a claim. Our experienced attorneys at V.James DeSimone Law will diligently investigate and assess the strength of your case.

Signs That A Layoff May Be Age Discrimination

In the context of COVID-19 layoffs, many employers will rely on the loss of business revenue to justify a reduction to their workforce. However, even in the world of COVID-19, age discrimination can still happen. Here are some things to look for when evaluating if you have been the victim of age discrimination.

1. Do you fall within the protected age group for age discrimination?

Age discrimination occurs when an employer treats an employee, who is over 40 years of age, less favorably because of his or her age.

The Age Discrimination Employment Act (ADEA) forbids age discrimination against people who are 40 years or older. These situations may include any aspect of employment, including hiring, firing, pay, promotions, and layoffs. Some state laws may protect younger workers from discrimination, but it is not illegal for an employer to favor an older worker over a younger one.

2. Circumstances around the layoff.

In the context of an age-, gender or race discriminationcase, the factors must show that the decision to layoff an employee was not actually a legitimate business need to reduce the workforce, but instead because of age, gender or race. Some evidence to consider would be:

• Did the company institute a relatively small layoff that focused only on more experienced, older, and higher paid employees, or employees of a certain gender, race, ethnicity, disability, or sexual orientation?
• Were younger, less experienced, and less expensive employees kept, and in some cases take over the work of the recently laid off workers?
• Comments made by the employer, or their actors, that make reference to experience, age, higher salaries, or nearness to retire of the other employees or their gender, race, ethnicity, disability, or sexual orientation.
• Did the employer include age preferences in notices or advertisements of the same job of the recently laid off older employees?
• Did the employer hire new, younger employers (or employees of a different race, ethnicity, gender or sexual orientation) within a relatively short period of time after the older employers are let go?

Legal Standards for Age Discrimination

The ADEA prohibits an employer from discharging or otherwise “discriminating against any individual because of the individual’s age.” 29 U.S.C. § 623(a). The ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government.

The Equal Employment Opportunity Commission (EEOC) enforces workplace and anti-discrimination laws. For employees in the private sector, a charge of age discrimination must be filed with the EEOC within 180 days (in California its 300 days) of the discriminatory act, which is the notice of layoff.    In California, however, the statute of limitations for state law cases under the Fair Employment Act, has been extended to three years!

To win a discrimination case, the plaintiff must prove “by a preponderance of evidence,” that age was the ‘substantial motivating factor}’ for the challenged employer decision.  The standard is the same for other types of discrimination such as gender, race, ethnic origin, disability or sexual orientation.

Do I Still Have a Case if I Signed a Severance Package during my Layoffs?

To minimize the risk of potential litigation, many employers may offer employees who they layoff money or benefits in exchange for a release, or a waiver, of any liability of discrimination claims, such as age or race discrimination. If asked to sign such an agreement, but you believe you have been discriminated against, retaliated against, or the company is not offering enough money, consult with an employment wrongful termination and discrimation attorney. 

If you signed a severance package containing a release of all claims, it is extremely difficult for an Attorney to help you.    You may later have found out certain facts that lead you to believe you were laid off due to age or have other reasons to challenge what you sign, but the better practice is, when in doubt, consult an Attorney first. , .

A severance agreement is usually a contract or document that offers an employee money or benefits. An example would be a lump sum payment, or periodic payments of the employee’s salary after the layoff. The benefits cannot be something the employee is already entitled to, like paid earned vacation time. In exchange, the employer seeks the employee’s consent and permission to release the employer from any discriminatory cases.

If there is a severance agreement and an employee still brings a lawsuit alleging discrimination the employer can argue that the case should be dismissed because the employee waived the right to sue.. In that situation, he first issue will be to decide if the agreement was valid before the Court will even consider your case of discrimination or retaliation.  So, once again, if you are at all considering whether to bring a claim consult a lawer before you sign anything.  There are times when we can negotiate a better severance agreement without even filing a lawsuit.

In order to be valid, the employee must have knowingly and voluntarily consented to the waiver. In addition to being knowingly and voluntarily signed, a valid agreement must also (1) offer some sort of consideration, like additional compensation in exchange for the employee’s waiver of right to sue; (2) cannot require the employee to waive future rights; and (3) comply with applicable state and federal laws.

Contact Us

If you believe that you are a victim of employment discrimination, consider contacting the attorneys at V. James DeSimone Law. If we accept your case for representation, the attorneys at V. James DeSimone Law will diligently handle every aspect of your case. If there is a severance package, don’t sign until you call an attorney.

V. James DeSimone

Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.