When You Fire an Employee, Youd Better Get Your Story Straight

October 27, 2010, 10:13 AM

When faced with a lawsuit from an employee alleging discriminatory termination, an employer needs to show that there was a legitimate, non-discriminatory explanation for its actions. The employee then has to prove that these legitimate reasons are nothing more than a pretext for discrimination. To many human resource personnel fluent in employment law, this is not a surprise. The natural inclination then, when firing an employee who falls within a protected class, is to document all the non-discriminatory reasons for the termination. While such documentation is critical, HR personnel and in-house decision makers need to be aware of the importance of (i) identifying the actual legitimate reasons early, and (ii) being consistent when presenting these reasons in any future litigation.

A recent decision from the Sixth Circuit ruled that inconsistent justifications for firing a manager implied that those non-discriminatory reasons for the termination were actually a pretext for discrimination. In Eades v. Brookdale Senior Living, Inc., 2010 U.S. App. LEXIS 19755, the plaintiff was a forty-two year old manager who claimed he was unlawfully terminated in retaliation for filing complaints about his supervisor with human resources. The employer, Brookdale Senior Living, won a motion for summary judgment after the district court found that the plaintiff provided no evidence of a pretext. The Sixth Circuit, however, reversed this ruling, finding that the employer changed its story over the course of the EEOC investigation and litigation. On separate occasions, the employer said Eades was fired for performance reasons and then explicitly denied that Eades performance was an issue. In fact, the court identified five separate versions of the justification for termination. While each of these reasons was legitimate and non-discriminatory, the employer's flip-flopping raised a question of fact regarding the existence of a pretext sufficient to overcome a motion for summary judgment and allowed the plaintiff to go forward with the case.

Employers and HR managers need to make sure that they not only document the non-discriminatory justification for disciplinary actions or terminations, but must also make sure they are consistent in all representations to the employee, the EEOC, and the courts if they want a chance of defeating any potential litigation at the summary judgment stage. --Michael B. Steele