Thursday, May 4, 2023

When you offer a reason for something, you better be really, really sure it’s correct

It is with great sadness that we announce that the Founders Detroit Taproom will be permanently closing its doors today.

Unfortunately, our Detroit location has not been immune to the struggle to regain foot traffic after temporary Covid closures that have impacted restaurants and bars across the nation.

That was the message that Founders Brewing Company posted across its social media channels earlier this week.

There is no doubt that the bar and restaurant industry has struggled throughout the pandemic and, in pockets, continues to struggle. Consider, however, that less than three hours before Founders announced its Detroit taproom closure, it was sued by a Black employee claiming that the brewery promoted her "purely for optic reasons" and subjected her to "egregious racial harassment" that was "so objectively racially hostile that she had no choice but to resign" last week.

Racial harassment lawsuits are not new to Founders. Four years ago, it settled another racial discrimination lawsuit, one that was made famous by a manager who testified in his deposition that he did not know that the plaintiff (or Barack Obama, or Michael Jordan) was Black.

In the most recent case filed against Founders, the bona fides of its claim of "poor post-Covid foot traffic" will be squarely at issue. While it'd be hard to believe that a business would shut down to avoid one employee's discrimination claim, this business does have a certain track record. Moreover, if the plaintiff can poke holes in Founders' foot-traffic claim, it'll make that claim look like pretext. 

In discrimination litigation, pretext is evidence tending to show that an employer's proffered legitimate non-discriminatory reason is false. A plaintiff can establish pretext by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct. If the "foot traffic" claim meets one of these criteria — such as having no basis in fact — Founders has some issues to explain in court.