Skip to Content
Michel | King Michel | King
Free Confidential Case Evaluation 205-265-1880

Establishing Pretext When Your Employer Does Not Follow Its Policies


When it comes to business decisions, employers typically have a great deal of discretion regarding how their business operates. That includes how it handles its employment decisions. However, there are various rules and actions that may result in employment discrimination depending on the situation. For example, if your employer has established a detailed attendance policy and put it in writing, employees are expected to comply with that policy. What happens, though, if policies are not followed, but only in certain situations or involving certain people. This could be evidence of a pretext for discrimination.

The benefits of consistently applied workplace policies

Certainly, it is important for employers to create and enforce clear and reasonable workplace rules and policies. It is equally important for employers to be consistent in following those policies. Establishing realistic policies and enforcing them in a uniform manner will promote workplace efficiency and improve the morale among its workers. When employees know not only what is expected of them, but also what the consequences are for non-compliance, businesses can run smoother and employees can be more productive.

Not all employers follow the rules

The reality is, though, that not all employers follow those reasonable policies consistently. Unfortunately, some employers choose to be selective in how workplace rules and policies are applied and change or bend the rules to fit a certain situation or a certain employee. In some cases, managers and supervisors disregard the rules and policies completely. While employers may have the discretion to do that, it still seems unfair. In states like Alabama which are considered “employment at will” states, it is often completely legal.

When failure to follow company policy can lead to unlawful discrimination

As with most things, there are always a few exceptions. Under some circumstances, employers are required to follow their established policies and apply them consistently. Otherwise, they may subject to legal liability. For instance, the failure to follow established policies is illegal when those policies are consistent with statutory or regulatory requirements and when they are included in or established by an employment contract or collective bargaining agreement.

Failure to follow policies can establish a pretext for discrimination

If it can be proven that the employer’s decision to disregard its own workplace rules or policies was motivated by discriminatory animus, there is a potential claim for employment discrimination. Consider the scenario of an African-American employee who is terminated based on attendance issues when, according to the written attendance policy, the employee has not yet violated the policy. The employer’s failure to apply the policy as it was written to this particular employee could potentially be evidence of discrimination.

What does “pretext” mean?

In the employment discrimination context, there is a method for demonstrating that an employer’s conduct or decision making was discriminatory. Once an employer has provided what appears to be a legitimate, non-discriminatory reason for an adverse employment action, the employee must then show that the reason “was not the true reason for the employment decision,” but instead was a “pretext” (or excuse) for discrimination.

How can employees establish pretext?

One of the methods by which an employee can show pretext is to prove that the employer’s explanation for the adverse employment action “lacks credibility” and, instead, discrimination was the most likely motive. To put it another way, the question is whether the reason given would have motivated a reasonable employer to take the challenged employment action? The courts have repeatedly held that an employer's failure to follow its own policies can support a finding of pretext and, therefore, discrimination.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

Share To: