Professionals Fourth Circuit Says Failure to Replace

Employee Does Not Defeat

Discriminatory Termination Claim
Client Alerts
July 26, 2016

When a terminated employee alleges that her ;ring resulted from

discrimination or retaliation, employers often dispute those claims by
noting that the employer never hired anyone to take the terminated
employee’s position. In other words, the employer argues that no person
outside the protected classi;cation claimed by the plaintiff ever replaced
Jonathan M. Crotty her. A recent decision by the Fourth Circuit Court of Appeals (which
Partner includes North Carolina and South Carolina) cautions employers by noting
Email that rehiring is not a required element of a discrimination claim.

In Guessous v. Fairview Prop. Invs., LLC, the plaintiff was a Moroccan-

American clerical worker who complained that her supervisor had
engaged in a long series of harassing and derogatory remarks and
conduct based on her national origin and religion. Shortly after returning
from a maternity leave, the plaintiff claimed that she complained to the
supervisor about a lack of work combined with stress caused by his
behavior. She introduced evidence indicating that the employer decided to
eliminate her position within a few hours of this complaint.

The district court granted summary judgment to the employer on the

plaintiff’s discrimination and retaliation claims. The court based its
decision on the fact that the employer had never hired anyone to replace
Michel Vanesse
her. The plaintiff could not point to any person outside of the protected
Partner classi;cation who was treated in a more favorable manner.
Email

The Fourth Circuit reversed this decision, remanding the claim for jury trial.
The court noted that when the employer eliminated the plaintiff’s job, it
Practices
shifted her work to other non-Muslim, non-Moroccan-American
employees. Title VII does not require the plaintiff to show a rehire of
someone outside of these protected classi;cations. In a reduction in force
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 Employee Bene;ts & Executive context, even one involving one job elimination, courts can review whether
Compensation the plaintiff’s selection as opposed to co-workers, resulted from a
discriminatory or retaliatory animus.
Employment & Labor
Employers engaging in reductions in force should thoroughly document
the business reasons for the reduction, along with the selection process
SUBSCRIBE used to determine positions to be eliminated. The failure to replace the
terminated employee does not eliminate legal risk associated with the
selection decision.

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