Pretext: Employers’ Excuses and Explanations

“Laid off,” “separated,” “let go,” or even “graduated” – these are all terms employers might use to describe ending employment relationships. These euphemisms are apparently intended to soften the blow for the employee and to ease the employer’s conscience, with varying degrees of success. Employers often explain a termination as a “business decision” aimed at goals like increasing efficiency or “reorganizing” the company. In Georgia, most employment relationships are “at will,” which means that both the employer and the employee have the right to end the employment relationship at any time, for any reason – or even for no reason at all.

There is an exception: an employer cannot terminate an employee’s employment for an illegal reason, for example because of the employee’s race. Title VII of the Civil Rights Act of 1964 (Title VII) gives employees protection from adverse employment decisions, such as terminations, based on certain protected characteristics includingrace, color, national origin, sex, pregnancy, or religion. Similarly, the Americans with Disabilities Act Amendments Act of 2008 (ADA) provides protection against discriminatory employment decisions based on an employee’s disability. Both of these statutes also provide protection against retaliation for a “protected activity.” If, for example, an employee complains about gender discrimination or requests an accommodation for a disability, that is considered protected activity. Then, a negative reaction from the employer because of the protected activity, such as termination, can be considered illegal retaliation. If you believe you have been terminated or wronged by your employer because of a protected characteristic or protected activity, consider reaching out to the attorneys at Legare, Attwood & Ragan, LLC for assistance. You may have more rights under the law than you realize.

But what if your employer gives another explanation for the termination? Employers rarely admit that they have treated an employee badly because of the employee’s protected characteristic or because of retaliation for the employee’s protected activity. Instead, employers often make up explanations that would be legal and might appear legitimate at first glance. A typical excuse is that the decision was made for “business reasons.” This is a useful explanation for an employer to present, because the employer has control over what it says are its business needs and goals. Employers also often claim that the employee’s performance was poor. This is similarly a useful explanation for an employer to present, because the employer is the one that determines what qualifies as “good” or “bad” performance, and such criticisms can also help the employer by intimidating the employee or undermining their confidence.

There are effective ways to combat these strategies. To win in court, an employee must prove the employer’s real reason for terminating him/her was illegal discrimination or retaliation. This often means showing the employer’s claimed reason for the termination was false or not credible. When an employee shows that the reason the employer gave was not the true reason, that is called showing that the employer’s stated reason was a “pretext” for discrimination, which the Supreme Court discusses in the case Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). For example, if an employer claims it eliminated a person’s position for business reasons but then hires someone else to fill the same position, this might indicate that discrimination was the true reason for the termination. Similarly, a person with a history of positive performance reviews may be able to show that they were not actually fired because of poor performance, indicating that the reason the employer gave was false and was a “pretext” for the true, discriminatory reason. However, every case is different, and employers’ excuses often sound convincing. That’s why it is important to speak with an attorney if you believe you have been discriminated against at work, even if your employer claims it has a good reason for letting you go.