In the March, 2017 Client Alert, the Author submitted an Article on giving guidance to Employers in the creation of good documentation to substantiate and defend Employment Decisions when those Decisions are called into question. While the presence (or lack thereof) of good documentation can be the success or failure in any Employment Litigation, there are certain situations where an Employer’s documentation may create a “tangled web” in which an Employer catches himself/herself.

In the case of a Disparate Treatment Claim, if the Plaintiff-Employee can show that the Defendant-Employer’s reason for taking any adverse action (i.e. discipline) is “pretextual”, that, in and of itself, creates a Fact Issue rather than a Legal Issue and the matter will probably have to be decided by a Jury rather than a Judge. For a Plaintiff who does not have direct evidence of an unlawful action, that Plaintiff may establish a Prima Facie Case of discrimination by showing that he or she:

1. Is a member of a Protected Class;

2. Has performed his/her job acceptably

3. Has been disciplined or terminated.

Once the Plaintiff has established the Prima Facie Case, the burden of going forward with the Case will shift to the Defendant-Employer to establish a legitimate and nondiscriminatory reason for its actions. If the Employer can articulate such a legitimate and nondiscriminatory reason, the Plaintiff may still be allowed to take the Claim to the Jury if he/she can prove through evidence that the Employer’s alleged legitimate and nondiscriminatory reason is a pretext. It is extremely rare that a Plaintiff-Employee will ever have a “smoking gun” (i.e. admission of intentional discriminatory treatment or wrongful termination) and almost every case that the Author has experienced in his career has been premised on the indirect evidence – Prima Facie Case; establishment of legitimate and nondiscriminatory reason for the action, and an attempt to prove Pretext.

For Employers to be successful in defending a Disparate Treatment Claim (i.e. a Pretext Claim), they must establish that they have been fair and consistent in their application of discipline and that they have based any decision on legitimate nondiscriminatory reasons. The “pitfalls” that arise in most of these cases are as follows:

1. Action taken against an Employee that is inconsistent with that Employee’s Performance Evaluations

When Performance Evaluations are done for any individual by multiple parties, it is very rare that those Employment Evaluations will follow a single consistent pattern. Some Evaluators will be extremely harsh in their assessment of an individual’s performance while others, while trying to be nice or not express negativity, will couch performance problems in language reflecting that the involved Employee is “trying their best”; “achieving some success in the job”, or “giving 110% effort”. While those nice Performance Evaluations may look good on paper, they will come back to haunt an Employer trying to defend itself from an adverse action with that Employee. Performance Evaluations must be factually straightforward and cannot be allowed to establish disparities in an individual’s performance that can raise Fact Issues as to the basis for the discipline.

2. Treat an Employee in a Protected Class differently from other similarly situated Employees

All Employees within a Job Category must be treated the same (as was once said about Vince Lombardi, legendary Packers Coach – “he treated all players like dogs”). If a female Employee can show that she was held to a higher standard of performance or, conversely, her male cohorts were allowed a little more slack, this creates a True Fact Issue as to whether or not the persons category (i.e. being a female) was the reason for her termination vis-à-vis her male job companions or if, in fact, she was a “bad performer”.

3. Fail to enforce the same rules for all Employees

While, as a Manager, you may believe that Joe has more potential to give to the Company, you cannot hold Joe to a higher standard than Jim, Fred or Mary. There would be inconsistency or at least divergence in holding Joe, an African American Employee, to a higher standard than Fred or Jim, Caucasian Employees, or Mary, an Asian female. This would raise the sector that, even if Joe had more potential, it would look as if his race may be a factor in the adverse action taken against him because of the different standards evoked as to what is required at work from the group of Employees.

4. Allowing a Working Environment in which there is “Stereotypical Thinking”

All of us, based on our life experiences, have made conclusions or have opinions about how people behave, be they Young vs. Old, Male vs. Female, or Caucasian vs. Asian. Sometimes those concepts of “Stereotypical Thinking” impact how an individual is evaluated or treated and those kinds of comments or opinions created from a subconscious sense of the involved Employee may be interpreted very differently by a Jury. In point of fact, that subconscious thinking allows us to categorize people on some very broad generalizations that may have little, if any, impact on the actual facts.

5. Failure to follow own Policies or Procedures

If there is one area that constantly bedevils the Author, it is the fact that there are established Policies or Procedures as to when discipline is issued and how discipline is to be done, written in Employee Manuals, which are rarely, if ever, referenced when discipline occurs. If an Employer has a Written Policy of how discipline is to be used, it should be used, and used consistently, across the entire composite of the Workforce. Policy deviations from allegedly established Criteria or Procedures will almost invariably lead a Jury to conclude that the Employer’s offered defense is merely a pretext.

Employers have to act fairly and consistently and ensure that Working Environments are free of unlawful harassment or animus. This is accomplished by following clear and established Policies and treating all Employees consistently. Failure to do so will invariably lead a Jury to find against the Employer!

Questions? Contact Attorney Walter J. Liszka in our Chicago office at (312)629-9300 or by email at waliszka@wesselssherman.com