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Who Has the Burden of Proof in Adverse Employment Action Cases?

There are various federal employment laws that protect individuals from being discriminated and retaliated against. These laws include, but are not limited to, Title VII of the Civil Rights Act of 1964 (“Title VII”); the Americans with Disabilities Act of 1990 (“ADA”); the Family Medical Leave Act of 1993 (“FMLA”); and the Age Discrimination in Employment Act of 1967 (“ADEA”).

When asserting discrimination and retaliation claims, an employee must demonstrate that the employer took an adverse employment action against them. Typically, the adverse employment action must be tangible, such as termination, demotion, or a cut in pay.

Once the employee has satisfied his or her initial evidentiary burden, then the burden shifts to the employer to justify its reason for taking the adverse employment action. An employer can do this by demonstrating that its adverse employment action was legitimate, and not discriminatory and/or retaliatory. The employer’s burden is light. After the employer has met this burden, the employee must then establish that the employer’s reasoning is “pretext” or a cover-up for the real discriminatory and/or retaliatory reason. This burden is not as light as the employer’s burden.

How Do You Prove an Employer Used a “Pretext” for Discrimination or Retaliation?

An employee may satisfy his or her pretext burden by offering evidence that the employer more likely than not acted with a discriminatory and/or retaliatory motive, or by showing that the employer’s offered reasoning is not credible. In other words, an employee must present evidence “sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.”

An employee can do this by revealing “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions” in the employer’s stated reason for taking the adverse employment action, such that a factfinder would find them “unworthy of credence.”

An employee cannot meet this burden by simply quarrelling with the employer’s stated reason, but rather, must rebut it “head on” with evidence. Thus, if an employer terminates an employee for alleged performance issues, and has the requisite evidence to demonstrate the same, the employee cannot simply argue to the court that he or she did not have the alleged performance issues. Rather, the employee must be able to rebut the employer’s reason “head on” with other evidence that demonstrates that the alleged performance issues were a cover-up for the real discriminatory and/or retaliatory reason.

In a retaliation case with facts similar to the above-described situation, an employee may be able to rebut the alleged performance issues “head on” if he or she can show the court that the performance issues were known to the employer before he or she engaged in protected activity, and that the employer did not address said performance issues until after he or she engaged in protected activity. In that instance, a factfinder may be able to find the necessary “pretext.” However, merely disputing with the accuracy of a performance evaluation or review is not enough to meet this burden.

Contact an Experienced Employment Attorney to Discuss Your Case

If you feel your employment rights have been violated, 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) 319-9724. We are here to serve you.