If an employer is going to beat an employment discrimination claim, its
best shot is in front of a judge on a motion for summary judgment. The
best way for an employer to lose a summary judgment motion is to appear to
be lying about why the plaintiff needed to be fired. Enter HR.
But first, what exactly is a motion for summary judgment?
A defendant-employer will typically move for summary judgment after each
side has had a chance to depose each other's key witnesses and review each
other's important documents. If it turns out the plaintiff-employee has
enough evidence to convince the jury the employer broke the law, the
defendant will lose its motion for summary judgment, and the plaintiff
will get his or her day in court. If the plaintiff's evidence could not
possibly convince a reasonable jury there was any wrongdoing, summary
judgment for the defendant will be granted -- which means the defendant
wins (though of course the plaintiff can appeal).
This description makes summary judgment sound like a neutral bit of
judicial housekeeping with the judge keeping only those cases away from
the jury that he or she is sure the jury would ultimately reject anyway.
Unfortunately, it's more complicated than that.
The stakes
According to the conventional wisdom of most trial lawyers, juries tend to
be more sympathetic to plaintiffs than are judges. This is particularly
true in cases where an employee is suing an employer. Accordingly, the
employer's best chance of winning is at the summary judgment phase.
Indeed, employers win the vast majority of discrimination claims brought
against them on summary judgment. Their record is much worse in cases that
go to a jury. One reason for this discrepancy, of course, is that only the
strongest cases go to the jury. But another reason is that juries often
find it easier to identify with employees than with employers.
These, then, are the stakes. The next question is what do employers do
that could cause them to lose a summary judgment motion?
False reasons
As the Supreme Court held in Reeves v. Sanderson Plumbing Products, Inc.,
the best way for an employer to lose a summary judgment motion is to give
a "false" reason for firing or not hiring the person.
What did the Court mean by false? After all, a reason can be "false"
either because it's a lie, or it's a mistake.
Most courts are pretty clear that firing someone due to a mistake is OK as
long as the mistake doesn't indicate discriminatory intent. For example,
if an employer fires an individual for failing to meet her sales goals
based on recent sales figures, it doesn't matter that the figures later
turn out to be based on a mistaken calculation. The important thing is
that she was fired for a nondiscriminatory reason. And that should be good
enough to let the employer win its summary judgment motion.
In contrast, where it looks like the employer might have "cooked the
books" in order to justify firing the employee, a court will let a jury
sort out who's telling the truth. For example, if the employer in the
above example knew that preliminary sales figures were often unreliable,
or if the employer routinely let other employees under perform without
being fired, the employer would have a much harder time winning on summary
judgment.
Suspicious minds
The question for employers then is what sort of conduct can turn an honest
mistake into an apparent lie? Consider a recent case.
In Santiago-Ramos v Centennial P.R. Wireless Corp., the plaintiff was a
female executive for a company opening an operation in Puerto Rico. She
had one child and planned to have another at some point. Her manager and
other managers routinely made comments about her ability to handle the
job, childcare, and her marital responsibilities. They were clear that
when recruiting for new talent, they wanted women who were not planning a
family in the near future. After three months, Santiago-Ramos was fired
with no warning and no explanation.
Centennial claimed it fired her because of several problems she caused;
however, it wasn't clear whether Santiago-Ramos was actually responsible
for all of the problems. As for the problems for which she was clearly
responsible, either no one ever told her they were problems, or she was
told they were not important. After she sued, Centennial finally produced
a list of problems.
The court determined Centennial's explanation for her termination was not
enough to justify a trial. First, it was clear that management was not
keen on employing a woman with children. Second, the employer came up with
its reasons for firing Santiago-Ramos only after she sued. Third, the
"problems" themselves seemed weak since the employer never indicated to
her that it took these problems seriously.
Bettering your odds
Before you fire someone, make sure everyone involved, included the fired
employee, understands precisely why the termination is taking place. The
more stories floating around, the less credible the real one seems. And
nothing looks worse than an employer giving one reason initially, and then
changing its mind as its managers are deposed and other reasons come out.
Make sure you are not firing someone for something other employees have
gotten away with.
Make sure the reason seems good. Although it is not against the law to
fire an individual for a bad reason, such reasons can look like a cover up
when coupled with other evidence.
Make sure (as much as possible) that gossip is quelled. Loose
discriminatory talk around the workplace, particularly by management,
makes a false reason look more like a lie than a mistake.
Make sure it doesn't appear as if you're justifying a decision
that was made ahead of time. It makes the reasoning look suspect.
CaseFacts
Court: United States Supreme Court
Date: June 12, 2000
Citation: Reeves v. Sanderson, No. 99-536
Online: http://supct.law.cornell.edu/supct/html/99-536.ZS.html
Court: First Circuit Court of Appeals
Date: July 6, 2000
Citation: Santiago-Ramos v. Centennial P.R. Wireless Corp., No.
99-1789
Online: http://laws.findlaw.com/1st/991789.html
This article is courtesy of HRWire. All rights reserved.
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