Since the 1960s and 1970s – when federal and California law began to provide increased protections for employees against various types of discrimination and wrongful termination – employers have often tried to escape liability for their illegal actions by coming up with a different “legal” reason for their hiring, firing, or other employment action than the actual reason. For example, if an employer didn't want to hire a certain applicant because she was Muslim, the employer might say that the reason she wasn't hired was because she didn't have reliable transportation, even if that wasn't really the reason.

Make no mistake, coming up with a “legal” reason other than the actual illegal reason for not hiring (or for firing, punishing, etc.) a person is still illegal, and that applicant could bring a valid employment discrimination claim against the employer. Under the law, when an employer comes up with an untrue reason, this is called a “pretext.” In everyday conversation, we might just call this an “excuse.” Whatever you call it, the employer is still violating the law, and you as the employee or applicant should be on guard for when an employer is giving you a pretext for its unlawful employment action.

Signs an Employer Might Have Given a Pretext for its Decision

It can of course be impossible in some cases to know what an employer's real reason for making a decision, especially where a manager may never have communicated to anyone his or her real reason, or where there is a conspiracy among managers and others to keep the illegal reason a secret (and thereby avoid a lawsuit).

In many cases, an employer will provide a justification for its action to an applicant or employee that the employee has not performed well on the job, has violated company policy, is not qualified, or that the company needs to downsize or freeze hiring. All of these may be valid reasons. But they may also be pretext for an illegal reason when any of the following occurs:

• Other employees were not subject to adverse actions based on the same reason given (e.g. you were fired for an action that others took as well).
• Other employees were hired despite the fact they lacked the same qualifications presented to you as necessary to the job (e.g. a college degree).
• The company takes actions which contradict its stated reason (e.g. it hires workers for your position right after it “downsized” you).
• The company's action occurred shortly after it became aware of your status in a protected class (e.g. the company fired you after it learned of your sexual orientation or national origin).

Bringing an Employment Law Claim When an Employer Makes a Pretextual Excuse

For many employment discrimination claims, the procedure that courts will employ in hearing the claim is as follows:
The plaintiff has the burden of showing that he or she was a member of a protected class (e.g. race, religion, nationality, gender, orientation, pregnancy status, etc.), and that the employer took an employment action (e.g. failure to hire, termination, etc.) adverse to the plaintiff's rights.
The defendant employer will then have to prove that there was a legally valid reason for the adverse action (e.g. the employee violated company policy).
Then, the plaintiff will have the burden of showing that the legally valid reason offered by the defendant was merely a “pretext” for the actual, illegal reason.

As an employee, you will want to do your best to document signs of a pretext as described above. When you work with an employment law attorney, your attorney can examine your documentation, and then seek further information from the company regarding its actual reason through depositions, document discovery and other devices.

At Access Lawyers Group, our employment law attorneys have many years of experience investigating claims to find the real reasons behind adverse employment actions, and we will work to get you the justice you deserve in your employment law matter. Contact us today for a consultation regarding your potential claim.