February 27, 2014

Getting the Story Straight

Posted in Disability, Discipline, Discrimination, Legitimate business reason, Legitimate Business Reason for Termination or other Adverse Action, Pretext, Retaliation, Uncategorized tagged , , , , at 3:49 pm by Tom Jacobson

crossed fingersAs much as everyone hopes that an employee will always be the right fit for a job, sometimes employers need to discharge a worker. And unless doing so breaks a contract or is based on some unlawful reason (such as illegal discrimination), the dismissal will usually withstand any legal challenge.

One of biggest mistakes an employer can make, though, is giving inconsistent reasons for dismissing the employee. This is because inconsistent reasoning hurts the employer’s credibility and can lead a court to find that the stated reason was really a pretext to cover up unlawful discrimination.

For example, in one recent case (Barnhart v. Regions Hospital) where a former employee claimed her firing resulted from unlawful discrimination, the employer claimed the real reason was her poor attendance and her failure to call in when she was going to be late or absent. However, other evidence suggested that the employer terminated her because of company restructuring. The judge ruled that this inconsistency called into question the true reason for the employee’ termination, and he ordered that the case would need to go trial where the true reason for the dismissal would have to be decided by a court. Had the employer given a consistent explanation, the case likely would have been dismissed.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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