When a terminated employee alleges that her firing 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 classification claimed by the plaintiff ever replaced her. A recent decision by the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) cautions employers by noting 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 her. The plaintiff could not point to any person outside of the protected classification who was treated in a more favorable manner.

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 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 classifications. In a reduction in force context, even one involving one job elimination, courts can review whether the plaintiff’s selection as opposed to co-workers, resulted from a discriminatory or retaliatory animus.

Employers engaging in reductions in force should thoroughly document the business reasons for the reduction, along with the selection process used to determine positions to be eliminated. The failure to replace the terminated employee does not eliminate legal risk associated with the selection decision.