posted on Thursday, July 06, 2006 11:08 AM
by
Lou Michels
The Truth and Nothing But
A key to the analysis of almost any discrimination case is whether an employer’s given reason for taking action against an employee is the real reason, or a lie that covers up intentional discrimination in the decision. This is known as a pretext analysis, i.e., is the employer's given a reason a pretext that hide discriminatory bias? Like most other aspects of Title VII litigation, this particular concept has been beaten to death repeatedly by practitioners and courts alike. Judge Posner of the 7th Circuit, with his usual clarity, recently issued an opinion that focuses directly on the pretext analysis, and contains valuable insights for practitioners and their clients alike.
The subject case involved the termination of an employee fired on the basis of a complaint of sexual harassment by a coworker. Following summary judgment for the employer, the employee appealed on the grounds that the employer's investigation of the sexual harassment complaint was "shoddy."
Posner cuts right to the heart of the matter, noting initially that the issue in any employment discrimination case is not whether the employer's decision was correct, but whether its basis was the "true reason" for the employer's decision. In other words, as long as the employer honestly believes the reason it gives for making the termination decision, it doesn't matter whether the employer was "mistaken, cruel, unethical, out of his head, or downright irrational." What matters is whether the employer believed the reason it gave for the termination. Posner discusses variations on this theme, such as the so-called sufficiency test, which states that discrimination can be inferred when the employer's given reason was insufficient to motivate its decision. Posner convincingly points out that these variations are simply different ways of looking at the key issue, and generally operate to confuse the inquiry by the courts.
The point in this decision for employers and their counsel is to once again demonstrate the importance of communicating the real reasons for an employer's actions, from the initial decision point forward. Some employers do not want to tell an employee that she is being fired for incompetence, or misconduct, or some other unpleasant reason. But giving an employee a reason for her termination that is not accurate, or even worse, putting an inaccurate justification in a formal position statement to the EEOC or a court document, is an almost guaranteed way to end up in litigation down the road. An employer that gives inconsistent stories about why it took certain actions is an employer that will be viewed by a court and a jury as having something to hide. And that something is invariably presumed to be a discriminatory animus once the case gets to trial.