One glaring sign of a possible pre-text is when an employee is terminated, demoted, or otherwise punished – but without the employer having followed their usual policies and procedures.
What Does It Mean?
A well-managed, non-discriminatory company will almost always have their policies and procedures for all manner of situations clearly spelled out in their Employee Handbook, and that company will follow those policies the same way every time, for all employees.
As an example, in the case of performance issues or behavior issues, there will likely be a clear explanation of how the company will handle those issues.
For instance, the policy might start with a verbal warning, followed by a written warning, followed by some kind of punitive action. Usually, at each step, the company will explain that it is up to the employee to correct the issue, and give them an opportunity to do so.
The point is though, whatever the policy says, the company must be consistent in how it handles the issues and follow the policy properly each time, regardless of which employee is having the issue. Failure to follow proper policy is usually indicative that the reasons given for a punitive action (termination, demotion, etc) are a pre-text.
What Are Some Examples?
In the case of Brennan v. GTE Government Systems Corp., the court found that a pre-text was given for laying off older employees because company policy was not being followed. In this case, the company was going through downsizing, and had a clear policy for determining who should be let go; it was called a Work Force Analysis program. But, management decided to ignore that program and the policy, and instead created their own “ranking system” to rate different employees, and then they fired the employees at the bottom of the rankings from their own system. The court found that this downsizing effort was just a pre-text to fire older employees, because the proper policy was not followed.
In the case of Bulwer v. Mount Auburn Hospital, the court found that the hospital did not follow their policy for dealing with issues of bad performance and treated Dr. Bulwer in an unfair manner. Dr. Bulwer, over the course of his tenure at the hospital, was given conflicting feedback and performance reports – some reviewers said he was great, and some said he was not – in direct contradiction of each other. Further, he was not given an opportunity to fix alleged performance issues whereas other employees had been. Ultimately, some of the reasons given for why Dr. Bulwer was let go were contradicted by what some of his reviewers had said in their reviews. The court found that the reasons given, because they were contradictory and because there was no opportunity to address or fix them despite other employees being allowed to do so, were a pre-text, and that Dr. Bulwer had been a victim of discrimination.
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