John J. Myers

Article Summary:

What are the six kinds of evidence that appear (alone or in combination) in almost every wrongful discharge case an employer loses?

Avoiding A Wrongful Dismissal

Employees do not have to prove discrimination in a termination to win a case. They must only present evidence that the employer's explanation for the discharge is not believable under the circumstances. From the fact that a false explanation was given, a jury is permitted to infer that the real explanation must have been an illegal one.

Six kinds of evidence appear (alone or in combination) in almost every case an employer loses:

  1. Remarks or documents that may indicate bias: Statements like "Women should stay home with their children."

  2. Inconsistency between record and explanation: An employee is discharged for poor performance, but his performance evaluations are satisfactory.

  3. Unequal treatment: A pregnant employee is discharged for tardiness, but a non-pregnant female with a similar record is not.

  4. Statistics: If 70 percent of workforce is Caucasian, but nine of 10 employees laid off are minorities.

  5. Unfairness: The employer fails to warn the employee that there's a performance problem.

  6. Timing: An accounting clerk is discharged shortly after questioning an expense report.
It is impossible to entirely shield a business from the risk of a wrongful discharge lawsuit. An employer should be conscious of actions that may serve as evidence and do everything possible to avoid them.

John Myers is chairman of the Labor and Employment Law Department of Eckert Seamans Cherin & Mellott. He defends employers throughout the country in cases involving claims of employment discrimination, wrongful discharge, ERISA violations, breach of employment contracts, minimum wage and overtime pay violations.

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