In an increasingly litigious world, employers must be extremely careful to avoid creating potential liability for themselves where none otherwise would exist.  One common mistake that employers make when discharging an employee is that different management employees may give different reasons for why an employee was discharged.  Those conflicting reasons alone may be enough to enable an employee to claim successfully that the real reason he was fired was because of unlawful discrimination.  Let me explain.

            Assume that a discharged employee claims that he was fired on the basis of a protected classification (such as age, race, or national origin), and that the discharge, therefore, constituted unlawful discrimination.  The employer is given an opportunity to demonstrate that the employee actually was fired for a legitimate business reason.  However, once the employer does so, the employee is given an opportunity to prove that the reason given by the employer was pretextual, and that the real reason for the discharge was discriminatory.

            In evaluating whether the employer’s stated reason was pretextual, the courts often will consider whether the employer provided different and conflicting reasons for the discharge.  For example, in a recent case in Alabama, an African American painter claimed that he was discharged because of his race.  The evidence showed that the employer initially told the employee that he was not being called to work because business was slow.  Later, the employer stated that he was being discharged for insubordination.  Eventually, the employer claimed that the former employee had failed to return company property.  Based in great part on these conflicting reasons given for the discharge, the court denied the company’s motion for summary judgment – which meant that the company was heading to a jury trial.  (Mack v. Colorworks Painting Co., N.D. Ala., 2:13-cv-02263-HGD, 10/21/15)

            The lesson of this cautionary tale is obvious.  Before an employer makes the decision to discipline or discharge an employee, management must make sure that all supervisory personnel are aware of the actual reason for the discipline or discharge.  Of course, that presupposes that the decision-maker himself clearly determines the basis for the decision before the decision is implemented.  In other words, employers – get your story straight and keep it straight. 

            At Luchansky Law, we focus on helping employers understand the steps they need to take to minimize the risk of litigation.  Occasionally, litigation is unavoidable.  In that case, Luchansky Law’s employment attorneys will use their extensive courtroom experience to represent your company and zealously advocate on your behalf.  If you are interested in discussing litigation avoidance procedures, or need to discuss threatened or actual litigation, call Bruce Luchansky or Judd Millman at 410.522.1020.