What Every Employee Needs to Know About Pretext

Almost every day our firm receives calls from potential clients claiming they were wrongfully terminated. What is often at the heart of the lawsuit is what the employer said was the reason for the termination versus the real reason for the termination. In order to prevail in the employment lawsuit the employee must show that the employer’s reason for terminating the employee was a pretext, or made up excuse, as a cover up for an illegal reason. This is also called a pretextual termination.

What is Pretext in a Termination Lawsuit?

A pretext is a phony excuse or a made up reason that the employer uses to fire an employee. A pretext is basically an excuse that is used to cover up the true and illegal reason for the termination. Some of the common pretexts we hear are “poor performance,” the employee “just does not fit” in at the company, “restructuring” or “reorganization,” and “financial reasons” or cutbacks.

How does an employee go about proving the reason is a pretext?

In order for an employee to show that the employer’s reason is a pretext, the employee must show either that it is more likely than not that a discriminatory reason motivated the employer than the pretextual reason, or the employer’s explanation is not credible. It should be noted that a mere mistake made by the employer is not a pretext, rather a pretext is a phony, deliberate excuse used to cover up the illegal reason.

Common Example

Here is a pretty common factual scenario of when an employer uses a pretext to fire an employee. Jane Doe was fired abruptly and arbitrarily days after complaining to Human Resources about being sexually harassed by a valued executive supervisor. Up until her complaint, she performed well at work. However, Jane’s employer told her that she was being fired because she just did not fit in anymore and it was not working out. That struck Jane as odd as she had been working there for years and was a valuable employee with no write ups or reprimands. Thus, it seems that Jane was fired for reporting sexual harassment in the workplace, not because she did not fit in anymore.

In this hypothetical the employer’s reason here is a pretext, and a way to cover up the real reason for the termination – the employee complained about harassment, and would rather just fire an her rather than a more valuable executive. This scenario happens quite a bit, especially in discrimination, hostile work environment, and wrongful termination cases.

At the end of the day, an employer almost never tells an employee they are firing him or her for the illegal reason. Usually, the employer will make up a reason as to why they are terminating the employee, and the illegal reason will have to be proved through circumstantial evidence. But just because the employer provides a pretext that may seem valid on its face does mean the employee does not have a case.

If you were recently terminated out of the blue and for an arbitrary reason, it cannot hurt to contact an employment attorney to investigate your legal rights and options.

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