One of the common signs that a person has been let go from a job on a “pre-text” is that there is no documentation of performance issues or problem behavior.
What it Means
It is generally appropriate for a business to terminate employees who perform poorly or behave badly and will not correct their behavior, once management makes them aware of it and asks for improvement.
Well-managed, non-discriminatory companies usually document the issues at the time of their occurrence, quickly tell the employee what is wrong and what needs to be done to correct it, and in many instances, may even help the employee work on the problem.
However, when an employer does not make an employee aware of “performance problems” or “behavior issues” and fails to document them at the time they occur, and then uses those problems as a reason to terminate or demote someone? That’s a pre-text, and it’s usually wrong.
What’s An Example of This?
Here are two cases that illustrate this well:
For instance, in the case Soto-Feliciano v. Villa Cofresi Hotels, the plaintiff was a man in his 50s. His employer let him go, and he claimed that it was age discrimination as well as retaliation. The company terminated Mr. Soto-Feliciano saying that he used profanity and was insubordinate – which are usually valid reasons to let someone go. But, Mr. Soto-Feliciano pointed out that the company had never given him any written warnings, as per company policy. The company only documented these issues later on, well after the incidents in question. The court found the company did not appropriately handle the situation – the reasons for terminating Mr. Soto-Feliciano were a pre-text.
And in the case of Abramain v. President & Fellows of Harvard College, the plaintiff was an employee who suffered harassing, intimidating and threatening behavior because of his ethnicity. His supervisor repeatedly wrote him up for bad performance – but never gave him copies of the critical performance reports. Because this alleged documentation was never given to Abramain, the jury could presume that they were not truthful. Thus, the court found that the behavior was indeed a pre-text.
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