Suits In The WorkPlace

The Truth and Nothing But

      A key to the analysis of almost any discrimination case is whether an employer’s given reason for taking action against an employee is the real reason, or a lie that covers up intentional discrimination in the decision.  This is known as a pretext analysis, i.e., is the employer's given a reason a pretext that hide discriminatory bias?  Like most other aspects of Title VII litigation, this particular concept has been beaten to death repeatedly by practitioners and courts alike.  Judge Posner of the 7th Circuit, with his usual clarity, recently issued an opinion that focuses directly on the pretext analysis, and contains valuable insights for practitioners and their clients alike.

     The subject case involved the termination of an employee fired on the basis of a complaint of sexual harassment by a coworker.  Following summary judgment for the employer, the employee appealed on the grounds that the employer's investigation of the sexual harassment complaint was "shoddy." 

     Posner cuts right to the heart of the matter, noting initially that the issue in any employment discrimination case is not whether the employer's decision was correct, but whether its basis was the "true reason" for the employer's decision.  In other words, as long as the employer honestly believes the reason it gives for making the termination decision, it doesn't matter whether the employer was "mistaken, cruel, unethical, out of his head, or downright irrational."  What matters is whether the employer believed the reason it gave for the termination.  Posner discusses variations on this theme, such as the so-called sufficiency test, which states that discrimination can be inferred when the employer's given reason was insufficient to motivate its decision.  Posner convincingly points out that these variations are simply different ways of looking at the key issue, and generally operate to confuse the inquiry by the courts. 

     The point in this decision for employers and their counsel is to once again demonstrate the importance of communicating the real reasons for an employer's actions, from the initial decision point forward.  Some employers do not want to tell an employee that she is being fired for incompetence, or misconduct, or some other unpleasant reason.  But giving an employee a reason for her termination that is not accurate, or even worse, putting an inaccurate justification in a formal position statement to the EEOC or a court document, is an almost guaranteed way to end up in litigation down the road.  An employer that gives inconsistent stories about why it took certain actions is an employer that will be viewed by a court and a jury as having something to hide.  And that something is invariably presumed to be a discriminatory animus once the case gets to trial.

Social Engineering Run Amok

Not content with keeping the citizens of Chicago from eating foie gras and contemplating the removal of trans fat by decree from all Chicago area restaurants, some Chicago aldermen have decided that large retail establishments are "a danger to both our communities' economic standards and our civic life."  Several of them have introduced an ordinance specifically designed to increase the cost of goods to consumers by introducing an artificially high wage and benefit requirement, undercut a private employer's ability to regulate public demonstrations on its property, and require the employment of convicted felons who can present a letter signed by anyone else attesting to their reformed character.

     The proposed Chicago ordinance is clearly aimed at big-box retailers such as Wal-mart, Target, and other large retailers (but which conceivably could apply to stores like Crate & Barrel or Ikea, or other large showroom type facilities with 75,000 sq. ft. or more).  The aldermen, who are generally beholden to the interests of union organizers, also will force store owners to open their "non-business areas" to any citizen to engage in so-called non-commercial speech with customers and employees on matters relating to "community affairs, religion, politics, business practices, workplace rights or topics of public concern."  I wonder if they would allow the Klan to conduct a rally.

      The real foolishness of this ordinance is easily demonstrated -- stores like Wal-mart, Target and others generally provide shopping at a substantially lower cost to local residents, who otherwise frequent small retail establishments that cannot use economies of scale to purchase their goods.  By making it extremely unpleasant for retailers to come into the city, the ordinance effectively mandates that Chicago residents will pay higher prices for everything from milk and toilet paper to clothing and electronics.  Numerous residents have complained at public hearings about riding the bus for miles to get to the nearest Wal-mart where their dollar goes much further than shopping options within the Chicago city limits.  However, there is one type of establishment that has not been subjected to this kind of scrutiny or social engineering -- casinos.  There are several proposals to put a major casino operation in downtown Chicago.  I have yet to see a single ordinance drafted in response.  If the choice for the aldermen is between supporting groceries or gambling, it appears that gambling holds all the cards.

UPDATE:  Chicago aldermen with stores in or projected to come into their wards are claiming the stores will close or not build there if the measure, now amended, passes.  The link to the story is here.  What, someone is surprised at the result of this legislative excess?

ADDITIONAL UPDATE:  The Chicago Trib is after the City Council now, too.  Here's the story.

LATEST UPDATE:  The ordinance passed this week, and will face an immediate legal challenge.

LATEST ADDITIONAL UPDATE:  Target bails.