COVID-19 Layoffs as a Pretext for Discrimination in California

At-will workers can be fired for any reason. That is the general rule in California.

Like most rules, however, there are many exceptions, and in the case of terminating an at-will employee, an employer can fire a worker without cause, unless the reason for the firing is illegal. With COVID-19 leading to millions of layoffs and an economy in a downward spiral, some employers may be tempted to use the virus as an excuse to target particular groups of employees, hoping that their illegal actions will be masked by the current virus.

If you or a loved one was recently laid off and you suspect it was because of a discriminatory reason, you may have a claim for illegal discrimination. However, as the plaintiff in a potential case, you will have the burden of proving your case. This is what you must be able to show:

The Discrimination Is Illegal

California has several dozen laws that prohibit discrimination and retaliation in the workplace. The California Fair Employment and Housing Act is a broad law that prohibits discrimination of employees and applicants. The Department of Fair Employment enforces state laws if employers discriminate against employees or applicants for any of the following reasons:

  • Race
  • Color
  • National origin
  • Sex or gender (Including Pregnancy)
  • Sexual orientation, gender identity, or gender expression
  • Age if over 40
  • Marital status
  • Military or veteran status
  • Medical condition
  • Genetic information

Not all forms of discrimination against employees are illegal. However, if your employer discriminated against you because of a reason protected by federal or state law or by your employer’s policies, you may have a claim.

If you or a loved one was recently laid off and you suspect it was because of a discriminatory reason, you may have a claim for illegal discrimination. However, as the plaintiff in a potential case, you will have the burden of proving your case. This is what you must be able to show: 

The Reason Given for Your Layoff was a Pretext for Discrimination

A major issue for wrongful termination cases is showing that the reason for termination was illegal. The employer may claim that the layoff was due to economic concerns, poor performance, or other alleged legitimate needs like Covid-19. Therefore, you must be able to refute that the reason your employer laid you off is not for the reason the employer stated and was a pretext for discrimination.

For example, older workers may be targeted for this type of treatment. Older workers may have higher salaries, insurance costs, and benefit costs. Employers who want to get rid of them in favor of a lower-earning, younger worker may try to use the current situation to accomplish this goal. If you were fired in this type of situation, you would need to show that COVID-19 was not the real reason for your layoff and instead it was because of your age.

This will largely come down to the evidence that you and your lawyer may be able to gather to substantiate your claim. Evidence of discriminatory intent may include:

  • The company made layoffs that disproportionately affected a protected group of people
  • Internal memos or emails show decision discussing the drawbacks of hiring certain types of workers based on their demographic data
  • People of a different composition are hired to take over the laid off workers jobs (such as young people replacing older workers or Caucasian workers replacing Hispanic workers, that sort of thing)
  • Your employer tries to establish a record to support its version of events that can be disproven, such as adding notes after the fact to your employment record or complaining about your performance suddenly after you have a long history of successful performance evaluations

While you may think it is difficult to establish this evidence, California and federal labor laws may require your employer to notify you about the identity of other employees it laid off, so you may be able to see trends in the layoffs. Additionally, your lawyer can take steps to unearth additional evidence such as communications on company computers that show pretext was involved to cover up the real reason for the firings.

You Suffered Damages

You will also have to show that you suffered damages because of your employer’s actions. If you were quickly able to rebound and find alternative employment that paid comparably to your former job, your damages may be minimal. However, based on the millions of unemployment claims stemming from COVID-19 layoffs, many people have not been able to rebound so quickly.

If you win your wrongful termination case, you may be able to recover compensation for the following types of damages:

  • Lost wages
  • Lost benefits
  • Attorney’s fees
  • Compensation for pain and suffering, mental distress, and loss of reputation

In some situations, you may be able to recover punitive damages, which are a separate set of damages that are awarded to a plaintiff to punish the defendant. These damages are often reserved for the most egregious offenses. However, a judge or jury may find that taking advantage of a global health crisis falls under this category of cases.

Legal Process for Pretext Claims

When a firing is committed as a pretext for discrimination, the legal process to establish your claim usually involves the following process:

You present evidence of a prima facie (on the face) case showing that you belong to a protected class, you were qualified for the job and were performing as expected, you were terminated, and you were replaced by another employee not in the same protected class or you were laid off under circumstances that give rise to an inference of illegal discrimination