(Photo: Petr Kratochvil, via Wikimedia Commons)
On Aug. 10, the U.S. Court of Appeals for the Fifth Circuit made it rain for plaintiffs lawyers in employment discrimination cases. Actually, more of a gully washer. Check it out in Burton v. Freescale Semiconducter. For employment lawyers, this case is like double frosted chocolate cake: rich and delicious. Here are two yummy bites:
First, the court imposed a “snapshot” approach on employers, limiting them to using in litigation only the reasons they knew at the time of the adverse employment action. Here, the decision to terminate the plaintiff was made in late June 2011, but she was not told of the termination until late July 2011. Why? She needed to stick around to train her replacement. In the interim, Freescale emailed various supervisors to gather evidence supporting the plaintiff’s termination.
In reversing summary judgment for the employer on the termination issue, the court drew a bright line: an employer can rely only upon what it knew at the time of the adverse employment action in articulating its legitimate, nondiscriminatory reasons for the action. Like in football, piling on gets flagged.
The second layer of richness deals with this nettlesome issue: if an employee is terminated, say for poor performance, does the lack of contemporaneous documentation support a finding of discrimination? The court actually came up with two answers. Answer 1 is “yes,”—if the lack of contemporaneous documentation is coupled with evidence that such documentation should exist, as when the employer has a “rigorous record-keeper policy” requiring written documentation of poor performance but does not follow the policy. But answer 2 takes a different and more expansive tack. The court opined: “Here, the lack of documentation matters because the defendants charge Burton with a “history of performance problems” but can show only a pair of dated, neutral performance reviews, a single mistake (on damaging a wafer), and (maybe) unauthorized use of the Internet. Their attempt to buttress that charge by compiling documentation after the fact, only highlights the relevance of the absent documentation.”
Note: this formulation says nothing about deviating from an established policy of written documentation, only about the lack of it when an employer points to a “history” of poor performance. Now, that’s a powerful tool for plaintiffs. And let’s lick the frosting: the court embraced the new definition under the amendments to the Americans with Disabilities Act on what it takes to establish a claim of perceived disability (not much—be ill), regardless if it rises to the level of an ADA covered disability, as long as the employer thinks the medical condition impairs the employee’s ability to do the job and takes an adverse employment action based on that belief.
Staffing companies will be on the hook if they participate in the discrimination or it knows or should have known of the discrimination but failed to take corrective measures within its control.
It also gives primer on what a plaintiff s need to do to suggest that the employer’s reasons for its actions are arguably pretextual. Lots of stuff. I’ll be going back for seconds.