As the devastating effects of Corona virus (Covid-19) materialize businesses across the state are resorting to mass layoffs, hour cuts, and terminations. Despite legitimate layoffs in the wake of a sudden shrinking economy, many employees have good reason to question their employer’s true motives. There might be something more personal at stake, such as discrimination based on race, color, religion, national origin, or sex.

Title VII of the Civil Rights Act of 1964 generally prohibits such discrimination. Rarely will an employer openly admit that a decision was discriminatory. Instead, the employer will likely offer a legitimate, non-discriminatory rationale for the adverse employment decision (e.g. termination, demotion, or transfer). Is the employer’s denial of discrimination and stated rationale the end of the story? Of course not.

At the outset, a disenfranchised employee who seeks to file a lawsuit under Title VII discrimination must have enough evidence to allow a judge or jury to infer or deduce that discrimination transpired. In legal terms, this is referred to as a “prima facie” case of discrimination.

After an employee has presented a prima facie case of discrimination, the employer has the opportunity to present evidence of a legitimate, nondiscriminatory motive for the employment decision.

In turn, to prevail, an employee must then challenge the employer’s ostensibly legitimate motive for the employment decision. This can be accomplished by demonstrating that the employer’s reason was pretext for discrimination.

Demonstrating pretext involves providing evidence that employer’s grounds for the employment decision are distorted or untrue — that the rationale is concealing the employer’s discriminatory intent. There are several avenues to demonstrate pretext in an employment discrimination case. An employee can show:

●    Implausible Rationale: the rationale that the employer had proffered for the employment decision is not believable or doesn’t make sense.

●    Contradictory Documents: the rationale that the employer had proffered for the employment decision can be contradicted by documents.

●    Shifting Rationale: the rationale for subjecting the employee to an adverse employment action changes over the course of time.

An illustration best shows how someone might prove that a layoff was simply pretext for discrimination:

Employee Mark works at Company X. He is qualified for his position. Mark’s supervisor at Company X is Supervisor Dan. Dan often makes racist comments towards Employee Mark. One day, Dan makes the decision to fire Mark because, in Mark’s own words: “we have to let one person go because the Coronavirus has greatly affected our profits. You’re simply not doing your job well and you are too frequently absent.” Employee Mark doesn’t believe Supervisor Dan’s claim, because Mark has received consistently excellent job performance reviews and leads Company X in sales. Furthermore, Company X’s profits have decreased during the Spread of Covid-19.

Here, Mark can demonstrate that Company X’s rationale is both (1) implausible, and (2) contradicted by documents.

Mark may hold his strong performance reviews and high sales numbers against those of his co-workers who were not terminated to establish how Dan’s citation of “poor performance” was patently untrue. Because Mark’s termination is purportedly attributed to decreasing profits, but Company X’s profits have not decreased during the Spread of Covid-19, Dan’s justification is effectively implausible as well.

Successfully demonstrating pretext in a time when employers are reducing work forces due to the economic impact of COVID-19 can be a difficult task. If, however, you suspect your employer has discriminated against you, contact our office so we can review your evidence and outline actionable steps to protect your legal right.