Wednesday, March 10, 2010

Avoiding shifting explanations avoids claim of pretext

Rep. Eric Massa resigned from Congress last week. Depending on the interview and the day, he either resigned: for health reasons, because of allegations he inappropriately touched a male aide, or because he, a Democrat, voted against the health care bill. Three very different reasons over the course of a week. Can we believe any of them, given these shifting explanations?

You may be wondering, what does Massa’s political downfall have to do with employment law? It serves as an excellent illustration of the dangers of shifting explanations in discrimination litigation.

For a plaintiff to succeed in a discrimination case, he or she must show that the employer’s stated reason for the challenged decisions was a pretext (i.e., a lie or a cover-up) for discrimination. One of the easiest ways for a plaintiff to establish pretext is to show that the employer’s explanation for the decision changed over time. Shifting reasons cast a cloud of doubt over the veracity of the explanation and the legitimacy of the decision. Once the fact-finder has reason to disbelieve the employer’s explanation, the case is sunk. As the United States Supreme Court stated in St. Mary's Honor Center v. Hicks, “the factfinder’s disbelief of the reasons put forward by defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may … show intentional discrimination.”

The takeaway – it is important to have your reason for the decision pinned down at the time the decision is made. Further, the reason must remain reasonably consistent for the lifespan of the case. You cannot offer the employee one reason, have another written in the personnel file, provide the EEOC another in the position statement, and have the decision maker tell yet another at deposition. At best, these shifting explanations will buy you a jury trial; at worst, they will result in a large jury verdict.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or