Discrimination cases filed by former employees against their companies are usually won or lost on one concept—pretext—meaning that the reason given by the employer for the firing appears to the jury as a cover-up or excuse for the real reason, which the plaintiff will strongly suggest is discrimination. If the employer’s reason for firing the employee doesn’t perfectly line up with the facts developed in discovery and at trial, the business has a good chance of losing the case to the disgruntled employee.
Let me give you an example. If you fired Mary for being tardy on five specific occasions, but your security camera tapes, your time clock records, her emails and the testimony of other employees show she was not late on all of the dates that you specified, Mary’s discrimination case just got a big boost because your reasons look like pretext for terminating Mary. Then the door is wide open to say that her termination from employment occurred because she is black, a woman, disabled or born in another country.
When presented with this contrary hard evidence about Mary’s tardiness, it is not going to convince the jury when you say, “Oops, I got the dates of her tardies wrong” even if that is what actually happened. There is little a defense attorney can do to help you with the jury at that point because your reasons for the termination just look like an excuse for something more sinister.
Juries are pretty savvy in sifting through an employer’s reasons. As the employer, you must assure that the reasons you fire an employee are specific, provable, clearly-stated, well-documented and stay consistent from the time you first discipline the employee to the time of trial. Any variation in your reasons will come off looking like pretext.
Here are some other things that employers do that usually will be perceived as pretext in front of a jury:
- Creating unbearable conditions for an employee to “run him off” rather than just going ahead and using your progressive discipline procedure. A jury will wonder whether all of the changes to that employee’s terms and conditions of employment were racially-motivated, for example.
- Out of date complaints about an employee’s performance. If his actions or inactions were really a problem, a jury will expect that you would have addressed it almost immediately.
- Setting unattainable goals for an employee in a performance review or plan of improvement.
- Documenting supposedly constant misconduct only right before or even after the employee is fired. There should be documentation of your previous efforts for several months attempting to get the employee to reform his/her behavior or performance.
- Finding reasons after the fact of termination, such as finding an extensive non-work-related internet browsing history on the employee’s computer after she is fired, and then trying to pretend those reasons led to the termination. This after-acquired evidence may provide good reasons that the employee should have been fired, but you weren’t aware of them so they played no role in the actual termination and cannot explain the real-time reasons that you fired her.
- Literally or figuratively rewriting the job description after the fact and trying to hold the fired employee responsible for things that were not part of his/her actual duties.
- Blaming an employee’s “attitude” or “lack of teamwork” or “poor professionalism” without being able to provide very concrete and specific examples of what those deficiencies looked like in real time. If the employee is eye-rolling when the supervisor gives instructions, write it down, take a video or get other witnesses to acknowledge in writing that is what the employee is doing.
- Saying an employee was fired for violating confidentiality when no specific efforts were taken by the business to protect secrets. Passwords, encryption, locked cabinets, folders marked “confidential” and other secrecy efforts should be taken by a company that really cares about protecting its proprietary information.
- Blaming the victim in sexual harassment investigations or otherwise looking more closely at the victim’s actions than the harasser’s behavior. Later firing the victim is just the icing on that pretextual cake.
- Using business financial setbacks as a reason for a termination when your profit and loss statements don’t support that reason when they are showed to a jury (and yes, you will have to provide the employee’s attorney significant financial information about your company if you claim that finances were the reason for the termination).
- Those emails or texts that show that whatever reason you gave for the termination is suspect. Sending “atta girl” emails (or worse, giving a raise) only a few weeks before you fired the same employee will haunt you in court. Don’t give raises or praises to those employees who aren’t performing and who may be fired sometime soon.
- “Eliminating” a job in order to fire the employee, and then after a brief time, advertising for and/or filling that same position or a similar one.
So avoid these kinds of actions that will be perceived as pretext by a jury. Know your reasons for any termination, make sure they are good ones, and stick with those reasons. Don’t fire in haste, but only after careful progressive discipline and documentation. I’ve written before here and here and here about other steps you can take to fire without fear.
I know all lawyers sound like a broken record on the subject of careful notes and investigations, but your accurate and complete documentation of the issues leading up to a termination is critically important in preventing a pretext victory by your former employee when he/she sues you for discrimination.