Sixth Circuit Rejects Disparate Impact Sex Discrimination Claims of Employees Laid Off in RIF by Columbus Moving Company.

Today, the Sixth Circuit affirmed the dismissal of sex discrimination claims brought by four terminated female employees who alleged that their employer’s reduction in force disproportionately affected women by focusing the RIF on predominately female departments. Shollenbarger v. Planes Moving & Storage, No. 06-4454 (10/21/08). In particular, the plaintiffs alleged that the RIF resulted in the termination of twelve women and only one man even though 53% of the employer’s total workforce consisted of women. At one point in the Court’s opinion, it noted that “the odds of selecting 12 women from the [employer’s] entire non-management labor pool is 0.1%.” Nonetheless, because the employer articulated a legitimate business justification for focusing its RIF on the predominately female departments, “statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

According to the Court, “[p]rior to the RIF, [the employer’s] non-management workforce comprised 120 women and 86 men, split into several departments. Management
comprised 18 women and 35 men. So, there were 259 total employees (53% female).” The employer then focused its RIF on certain departments: “Customer Service; Credit & Collections; Operations; and Billing & Rating. Of the 101 total employees in these departments, 90 were women and 11 were men, meaning that the departments were 89% female. Meanwhile, [the employer] excluded from the RIF its other departments: Warehouse; Movers & Packers; and Drivers. These departments consisted of 30 women and 75 men (105 total), meaning that they were only 29% female. [The employer] delegated to the individual department managers the decision of which employee(s) from their departments to lay off, using criteria of conduct, performance, reliability, and seniority. Ultimately, [the employer] laid off 12 women and one man.”

“The plaintiffs first challenged [the employer’s] ‘particular employment practice’ of selecting only certain (predominantly female) departments for the RIF. . . . The plaintiffs contend that the statistics . . . show a disparity and we agree. At this step in the analysis — the prima facie step —[the employer’s] reasons for selecting certain departments is immaterial; the only questions at this point are whether there was an identifiable disparity and, if so, whether the challenged employment practice (i.e., the selection of certain departments) could have caused the disparity. Based on a rudimentary statistical analysis, we answer both in the affirmative. If [the employer] had randomly selected one employee for layoff from its entire non-management labor pool (i.e., all departments), it would have had a 58% chance (120/206) of selecting a woman. By targeting only certain departments, the likelihood of selecting a woman increased to 89% (90/101). More telling is that the odds of selecting 12 women from the affected departments is 23%, whereas the odds of selecting 12 women from the entire non-management labor pool is 0.1%. We find this to be a sufficient disparity to demonstrate a disparate impact from the decision.”

Because the plaintiffs met their prima facie burden, “ the burden shifts and [the court] must consider whether [the employer] set forth a legitimate business justification. [The employer] explained that its declining business necessitated the RIF and that some departments were affected more that others; specifically, those employees who dealt most directly with customers were the most affected. In addition, the predominantly male, unaffected departments were staffed largely with seasonal workers (typically high school and college students) who had already left at the end of the peak summer season. And, there was no decline in the business being done by the warehouse. We conclude that the challenged employment practice of subjecting only certain departments to the RIF had a legitimate business justification.”

“Because [the employer] clearly met its burden of showing a legitimate business justification, the burden shifts back to the plaintiffs to show that “other tests or selection devices, without a similarly undesirable . . . effect, would also serve the employer’s legitimate [business] interest.” The plaintiffs argued that “there wasn’t any exploration of alternatives to these layoffs at all.” But, this is a misunderstanding of the standard and, hence, completely irrelevant. plaintiffs were obligated to prove equally effective alternatives and — although they offer alternatives to a RIF in general — they offer no alternative to subjecting only the particular, selected departments to the RIF. The purpose of this step is not to second guess the employer’s business decisions, it is to show — by pointing to obviously ignored alternatives — that the “particular employment practice” was actually pretext for discrimination.” Once the decision to focus the RIF on certain departments, the statistical anomalies disappear: “The RIF was 92% female (12/13), which is perfectly consistent with a random selection from an 89% pool. Statistically, 12 is the most likely number of women from this pool, as anything less would diverge from the basic statistical probability. Therefore, this statistical result does not demonstrate disparity, much less a significant disparity that can be connected causally to the challenged employment action.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0631n-06.pdf.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.