Don’t Call It a Job Elimination Unless It’s an Actual Job Elimination.

A recent EEOC press release warns employers not to assert a job elimination as the reason for an employee’s termination unless the job truly is being eliminated.

A “job elimination” may seem like a simple way of dealing with a problem employee. Employers may seek to avoid addressing difficult performance or conduct concerns by relying on this antiseptic, impersonal reason (“it’s not you, it’s the job”). Or, more malignantly, it may serve as a pretext for an illegal reason, like race discrimination, as the EEOC contends is the case in the lawsuit it just filed against an integrated real estate operating company and asset management firm. According to the EEOC, only a month after terminating a Black employee because his project development manager role was supposedly eliminated, the company promoted a less-qualified White employee into the role – which would clearly undercut the assertion that the role really had been eliminated.

Now, there may legitimately be situations where, after eliminating a role, the employer realizes that they did, in fact, actually need that role. But that is not a plan that should be made at the time that the role is being eliminated – nor is there a magic period of time that must pass before such a determination may be made. (We suggest a month is too soon, however). If this is the case, the employer must be prepared to justify its change of mind, using hard facts and numbers to demonstrate the legitimacy of its position.

In addition, there are situations in which an employer decides to eliminate one role and create another role that may perform similar functions. If the two roles are very similar, the creation of the new role may look like a pretext. If an employer chooses to replace one role with another that has any kind of overlap – and the original incumbent of the first role is not given the opportunity to take on the new role – the employer must be able to explain how and why the new role differs significantly from the eliminated role and further justify why the original incumbent is not qualified for the new role.

The real lesson is there are no shortcuts. If an employee is not performing or is engaging in misconduct, managers need to address those issues – and document them. Relying on a “job elimination” is not a good idea, unless the role truly is no longer required.