Job Ad to Replace Worker a Year After Layoff Not Evidence of Bias


By Joanne Deschenaux October 2, 2019

A former employee of a technology company who was laid off while she was on maternity leave could not proceed with her sex-discrimination suit even though the company advertised to fill her job about 14 months after the layoff, a California appellate court ruled.

The court rejected the employee's claim that the job postings showed that the company's asserted reason for the layoff—a companywide restructuring—was a pretext for unlawful discrimination.

The court said that the most it could infer from the job listings was that the decision to eliminate the employee's position "was a bad one that the company later reconsidered." When addressing claims of discrimination, the court said, the employer's "true reasons need not necessarily have been wise or correct." At issue was whether the employer showed discriminatory motive.

No Evidence of Improper Motive

California's Fair Employment and Housing Act (FEHA) prohibits an employer from firing a worker based on sex. Sex discrimination includes discrimination based on pregnancy.

In analyzing claims of discrimination under FEHA, California courts use the burden-shifting approach established by the U.S. Supreme Court.

First, the plaintiff must provide evidence that:

  • She was a member of a protected class.
  • She was qualified for the position or was performing competently in the position.
  • She suffered an adverse employment action, such as termination.
  • Some other circumstance suggests discriminatory motive.

The burden then shifts to the employer to produce admissible evidence that it took its action for a legitimate, nondiscriminatory reason. If the employer does so, then the plaintiff can attack the employer's offered reason as a pretext for discrimination or provide other evidence of discriminatory motive.

[SHRM members-only toolkit: What is FEHA and what does it cover?]

In this case, the court said, the plaintiff met her initial burden, and the employer presented a legitimate reason for the plaintiff's firing: She was one of more than 220 male and female employees whose positions were eliminated or restructured in a worldwide reduction in force (RIF).

The plaintiff did not dispute that in the late fall of 2016, the employer underwent a companywide restructuring. Instead, she argued that her position was not eliminated as part of the RIF because, in February 2018, she discovered job postings for a position similar to the one she had held.

The court rejected this claim, stating that even if the company was attempting to fill the plaintiff's old job, this was not evidence of discriminatory motive.

"Based on this evidence, we can infer the company reconsidered its decision to terminate [the plaintiff's] position, but we simply cannot infer [the company] terminated [the plaintiff] because she was a woman or pregnant."

Evidence suggesting that a decision might not have been wise is not evidence of improper motive, the court said, affirming a lower court decision that dismissed the plaintiff's lawsuit before trial.

Karunaratne v. Qiagen Inc., Calif. Ct. App., No. A154891 (Aug. 14, 2019).

Professional Pointer: Whether backfilling a laid-off employee's position is evidence of discrimination may have to do, in part, with timing. The plaintiff in this case saw the employment postings more than a year after the layoff. But firing an employee on maternity leave and then advertising to fill her job a week or even a month later, however, could well be seen as evidence that the asserted reason for the firing was a pretext for sex or pregnancy discrimination.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.


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