When making an employment decision (such as firing, hiring, demotion), it's important for your words and actions to be consistent with your true reasons. It's equally vital that you document and provide witnesses for such decisions. The U.S. Supreme Court made this point clear in its recent decision in Reeves v. Sanderson Plumbing Products Inc., an age discrimination case. (120 S. Ct. 2097)
Sound obvious? It's not. Many employers mistakenly believe it's better to say little or nothing at the time of decisions such as, or to offer a less confrontational reason for their actions to avoid offending the employee or provoking a lawsuit.
Taking the path of least resistance, however, may backfire.
Disbelief not enough
Under Reeves, if a court has reason to disbelieve your explanation, if only because of a feeling that you were unfair, insensitive or inconsistent, it could increase the risk of your being found guilty of discrimination, or at least having to go to trial when no discrimination has occurred.
Key point: The employee doesn't automatically win, however, if the court or jury rejects the employer's stated reason for its action. In Reeves, the high court said, "It is not enough ... to disbelieve the employer; the [court or jury] must believe the plaintiff's explanation of intentional discrimination."
Indeed, both in Reeves and a key 1993 Supreme Court decision (St. Mary's Honor Center v. Hicks, 509 U.S. 502), the court stressed that "the ultimate question" is not only whether the employer's reason is false but whether the employer intentionally discriminated. The burden of proving such discrimination remains with the employee, whether through direct or circumstantial evidence.
The court recognized that it takes little for an employee to establish a first impression, or prima facie, case of discrimination. Accordingly, it said there will be instances where, although the employee has established such a case and given lots of evidence to prove the company's reason was false, no rational court could conclude that the company discriminated.
In such instances, the court emphasized, an employer would be entitled to judgment if there was evidence of some other nondiscriminatory reason for its decision and there was abundant, independent evidence that no discrimination had occurred.
'Pretext plus' rejected
The court did reject the "pretext plus" path some courts had taken since Hicks, namely, that once an employer explains a legitimate business reason for its actions, the employee must not only prove that the reason is false but must give additional, independent evidence of discrimination beyond what was initially presented. The court has now made clear this is not necessarily so after weighing the initial evidence on each side, including any alleged proof that the employer's explanation is false.
Michael I. Bernstein is a partner in Benetar Bernstein Schair & Stein in New York and a member of the You and the Law advisory board.
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