Pretext in Wrongful Termination--The Cover Up to Wrongful Termination

Pretex and Wrongful Termination

Are employer's actually dumb enough to tell you they're terminating you because of your race, ethnicity, sexual orientation, or because you blew the whistle on an unlawful activity? Well . . . . sure, but it is exceptionally rare. Instead, what they'll do is say "oh, we're not terminating you because you demanded to be paid for all the hours you worked, we're terminating you because you did not appear at the meetings we did not invite you to."

Pretext in employment cases in California refers to a situation where an employer claims to have a legitimate reason for taking an adverse employment action, such as termination, demotion, or disciplinary action, but that reason is not the true reason for the action. Instead, the employer's actions may be motivated by discriminatory or retaliatory intent.

Under California law, it is illegal for employers to take adverse employment actions based on an employee's protected characteristics, such as race, gender, age, disability, religion, national origin, or sexual orientation. In some cases, an employer may try to mask their discriminatory or retaliatory intent by citing a different, ostensibly legitimate reason for their action.

"Great!" you might say before asking: "But how do we go about proving pretext in an employment case?" To prove pretext in a wrongful termination case, an employee would need to present evidence that shows that the employer's stated reason for the termination was false or misleading and that the real reason for the termination was discriminatory. Here are some examples of evidence that an employee could use to prove pretext:

1. Comparative Evidence: An employee could present evidence showing that other employees who engaged in similar conduct were not terminated or disciplined. This could indicate that the employer's stated reason for the termination was false and that the real reason was discriminatory.

2. Timing Evidence: An employee could present evidence showing that they were terminated shortly after engaging in protected activity, such as reporting discrimination or harassment, taking a medical leave of absence, or requesting an accommodation. This could indicate that the termination was motivated by retaliation rather than the employer's stated reason.

3. Performance Reviews and Other Documentation: An employee could present evidence showing that their performance reviews or other documentation, such as emails or memos, contradict the employer's stated reason for the termination. For example, if an employee was terminated for poor performance, but their performance reviews were positive, this could indicate that the employer's stated reason was false.

4. Witness Testimony: An employee could present testimony from co-workers or supervisors who witnessed discriminatory behavior or heard discriminatory comments that suggest the employer's real reason for the termination was discriminatory.

5. Statistical Evidence: An employee could present statistical evidence showing that employees in a protected class were terminated at a higher rate than other employees, indicating that the real reason for the termination was discriminatory.

In short, an employee would need to present evidence that shows that the employer's stated reason for the termination was false or misleading and that the real reason was discriminatory. This evidence could include comparative evidence, timing evidence, performance reviews and other documentation, witness testimony, or statistical evidence.