Today’s letter of the day is “P,” as in “Pretext”


In employment discrimination cases where a defendant-employer articulates a legitimate, nondiscriminatory reason for the employment action, the plaintiff has the burden then shifts to the plaintiff-employee to establish that the employer’s reason was a pretext for discrimination, i.e., the defendant’s reason for, say, terminating the plaintiff’s employment is false.

Without some direct evidence of discrimination, the plaintiff will attempt to offer evidence that the defendant’s employer’s reasons for their actions are implausible, inconsistent, or contradictory.

The U.S. Equal Employment Opportunity Commission recently announced that it had sued an employer for age discrimination when it terminated a 59-year-old employee.

The EEOC did not allege that the employer told the employee it was firing her because of her age, and there doesn’t appear to be a smoking gun document either.

However, the EEOC alleges it has enough circumstantial evidence to carry its burdens of persuasion and proof.

According to the lawsuit, the employee worked for the company for over ten years before she was fired at 59, which the company claims was a reduction in force of its sales staff.

The EEOC claims that, as part of the reduction, five out of six terminated employees were 55 or older, while 14 out of 18 employees considered for but ultimately spared from termination were under 55.

That’s some pretty good circumstantial evidence, but here’s the kicker.

The EEOC further alleges that despite initially telling the employee that it ended her employment as part of the RIF, the company later contradicted itself and claimed to have discharged her because of her alleged refusal to relocate. Further inconsistent with the company’s position, the employee previously agreed to such a relocation request, which the company withdrew. The refusal to relocate is even more implausible because the employee continued to work for the company remotely from another state for approximately 15 months before her sudden firing.

The EEOC claims that the employer violated the Age Discrimination In Employment Act when it discharged the employee as part of a RIF that disproportionately affected workers 55 and older.

An EEOC regional attorney added that “the company’s flimsy excuse for the termination because of the transfer makes clear the real reason: age discrimination.”

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