Many discrimination cases hinge on the issue of pretext—whether the employer's proffered non-discriminatory reason was the real reason for the adverse action, or subterfuge to cover up illegal discrimination.
One way for an employee to establish pretext is to demonstrate that the employer's reason for the adverse action changed over time. As the 6th Circuit explained in Thurman v. Yellow Freight System: "An employer's changing rationale for making an adverse employment decision can be evidence of pretext."
For example, in Asmo v. Keane, Inc. (another 6th Circuit case), a manager gave the employee five different reasons for her termination at the time of the dismissal. However, when the company responded to the EEOC charge, and again during that manager's deposition, the company and manager provided different reasons. The Court held that the employer's changed explanation required that the matter be submitted to a jury:
It is unclear how Santoro [the manager] initially came up with these [five] reasons for termination, but the fact that they were later eliminated, and they happen to be the two reasons that Santoro gave that are false, is very suspicious. It appears that Santoro offered any and all reasons he could think of to justify his decision to Asmo, whether or not they were true. Once a lawsuit was filed and Keane knew the reasons would be subject to scrutiny, it changed the justifications … to include only those that were either circumstantially true or could not be as easily penetrated as false.
What lessons can you take away from this case? An employer's reason for a termination is fixed at the time of termination. Changing that reason in litigation will only help the employee prove his or her case by offering evidence of pretext. For this reason it is vitally important that companies have all their ducks in a row before terminating an employee. Conduct a full investigation before pulling the termination trigger. Have a bona fide reason and stick to it.
If the proffered reason is based on an honest business judgment, it is unlikely that a court will disturb it. If, however, the reason shifts over time, it is conceivable that a jury will find pretext and concluded that discrimination, and not one of your changing reasons, motivated the decision.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
