Pretext and the Paranoid Lawyer

As part of our recent Membership Appreciation Month, Cascade members experienced a great virtual session on the best practices to avoid employment lawsuits (or at least make them easier to win), presented by Randy Sutton, a partner with Saalfeld Griggs Business Lawyers. At one point, Randy referred to the “paranoid lawyer” and it made me laugh out loud.  Mostly because of the visual in my head, but also because what followed was a list of actions that we see all too often in the workplace that create unnecessary risk and make it easier for a plaintiff to prove pretext.

What is pretext? 

Essentially the employee is trying to prove that the reason you’re providing for the action is not true and the real reason is due to discrimination or retaliation. 

How might the employee prove pretext?  Randy listed these examples:

• Bad Timing—The decision happened right after the protected status or activity
• Dumb Statements—You said what in that email???
• Arbitrary Actions—Company acts quickly, without a lot of thought, and without warning
• Inconsistency—The claimant has been treated differently than everyone else
• Hide the ball—The company didn’t tell the employee why he/she was terminated
• Shifty Stories—Claimant told one thing at termination and another thing after lawsuit filed
• Inconsistent Stories—The company’s witnesses don’t have their stories straight
• Lack of Documentation—Nothing written up, even though it should have been
• Failure to Follow Policy—The company ignored or failed to follow its own policies
• Sympathetic Claimant—The claimant comes across as sincere and believable
• Unsympathetic Managers—The jury doesn’t like the company or sees a hidden agenda

Any of these sound familiar to you?  If so, start thinking like a “paranoid lawyer” and plan for the worst case scenario.  That means thinking through how your actions will look to a judge or jury someday and creating intentional documentation that will help prove why your decision was fair and made sense. As you’re dealing with difficult employment issues, come back to this list to make sure you’re minimizing risk by having solid HR practices in place. If you need an assist, connect with us. We’re always listening and watching for these issues while helping you navigate.