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Professional Camouflage for Discriminatory Terminations

Despite record low unemployment numbers in the United States, one sector, tech, appears to be in the midst of a herd culling.

Since going back into private practice doing plaintiff's employment work, as I had done for several years prior to going to work for the city attorney's office as a prosecutor, I have seen a couple of noteworthy trends amongst employers. Specifically, smaller employers have struggled to update their severance agreements to conform with new Washington State RCWs barring confidentiality clauses that gag employees from talking about things like perceived discrimination in the workplace as well as heightened income and ongoing compensation requirements in enforcing noncompetition covenants. Unfortunately, the employers that are typically caught flat footed on these issues are the smaller ones, as larger employers such as Amazon lay off workers year around, and have an army of lawyers filtering bugs like antiquated language out of these instruments on an ongoing basis. Regardless if the employer is large or small, my job is to represent the workers, so that's what I do.

More interesting, is a trend of camouflaging what by all accounts appear to be illegal terminations as legitimate reductions in force ("RIF"). It is a business' prerogative to lay off employees, and to do so in large numbers. Most workers in the United States are not union members, almost none of the workers in the United States that work in tech are union members. That is, most workers, and almost all tech workers are at will employees that can be terminated at any time for any legal reason. When a business sees a valid business reason to lay off these employees, it can do so largely with a free hand, but it is still not permitted to terminate employees for illegal reasons such as discrimination.

Recently, the rash of tech layoffs, and allegations of sex, disability, and protected leave discrimination and retaliation have ran head on into each other. Coming out the COVID era, and with return to office ("RTO") policies going widely into effect industry wide, the animus toward disabled workers and their work from home accommodations seems to be the hot-button issue. A typical fact pattern I see is where an employee has worked largely from home for several years, and it is clear that the essential functions of their job can be performed remotely. Animus at executive levels in the company propagate an RTO policy, and employees that have disability accommodations or who take/took protected leave are discriminated and/or retaliated against often resulting in the illegal termination of the employee.

In addition to the disability/protected leave paradigm, RTO policies for positions that don't require a employee to be physically in the office disproportionately negatively affect women who are still primarily tasked with childcare. The additional commute time/expense of requiring employees into an office where a job can be done remotely can therefore lead to actionable sex discrimination. I want to be clear, employers are free to require employees back to the office, but when they do so with discriminatory motivations or results, legal problems follow.

It goes without saying that employers are not permitted to camouflage discriminatory terminations in this manner. Because the COVID era illuminated how much work can actually be done remotely, employers should tailor their RTO policies, and look at their affected employees on a case by case basis to minimize legal exposure. If they don't, and you're an affected employee, call me.

Christopher J. Stockwell has been a Seattle employment attorney representing workers in a wide variety of employment claims and disputes, primarily discrimination and wrongful termination actions, since 2015.


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