What Is Pretext?

This blog isn’t about text messaging or any preparation for sending a text message.

In the realm of employment law, “pretext” is the legal term used when an employer fires an employee for an illegal reason but, as a sham, claims that it used a legitimate reason to end the employment relationship.

Understanding Prima Facie

When a wrongful termination lawsuit is filed or when a wrongful termination is claimed, the employee needs to show the existence of a “prima facie” case. A Latin term, prima facie means “at first sight,” or "based on first impression." A prima facie case is satisfied when the elements of a cause of action are satisfied.

For example, a prima facie case of a hostile work environment based on sex is established when the employee can satisfy these four elements:

  1. The employee suffered intentional discrimination because of his/her sex.
  2. The discrimination was severe or pervasive.
  3. The discrimination detrimentally affected the employee; and,
  4. The discrimination would detrimentally affect a reasonable person of the same sex in that position.

A prima facie case of disability discrimination is established when the following elements exist:

  1. The person is a disabled person within the meaning of the law
  2. The person is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and,
  3. The person has suffered an otherwise adverse employment decision as a result of discrimination.

Of course, an employer would not admit to the existence of a hostile work environment or that it discriminated against a person based on a disability. Once the employee establishes a prima facie case, the employer has the burden to demonstrate that a legitimate non-discriminatory (or a non-retaliatory) reason existed for the employment actions it took. Once the employer advances what it claims to be a legitimate non-discriminatory (or a non-retaliatory) reason for its actions, the employee must show that the reason proffered by the employer was just a pretext for the employer’s actions.

Proving Pretext

Pretext is about demonstrating that the employer’s explanation is false. Evidence that the employer’s actions were pretextual can be direct or circumstantial. The employee needs to show that the employer's articulated “legitimate reasons” for its employment action should not be believed or that an invidious discriminatory reason was more likely than not a motivating factor behind the employer's decision to terminate the employee.

Simply stated without the legal mumbo-jumbo, pretext is a made-up reason used by an employer to fire an employee. It is nothing more than an excuse used by an employer to cover up an illegal reason for an employee’s termination. In cases of discrimination, pretext can be established through comparative evidence showing that similarly situated employees who are not in the employee’s protected class were treated more favorably. If an employee is fired because of what is claimed to be an economic downturn, pretext could be established by showing that prior to the claimed “economic downturn,” the employer hired more employees or gained new contracts.

Some of the common pretext reasons that employers use include but are not limited to:

  • Poor performance
  • Restructuring or reorganization
  • Downsizing
  • Financial reasons

If you suspect that you were terminated for an illegal reason and your employer provided you with a phony excuse, contact The Law Firm of Morgan Rooks, P.C. We can be reached via our online form or by dialing (856) 746-6332.

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