Employers Need to Get Their Stories Straight, blog by Michael J. Hays, Partner & Civil Litigation Attorney at Tuesley Hall Konopa, LLPBusinesspeople like to avoid courtrooms. They would rather be running their business than trying to justify their decisions to someone after the fact. More bluntly, they would rather be making money than spending it. Business managers particularly loathe the idea of a jury acting as some sort of human resources review panel with the power to undermine their personnel decisions.

But a recent federal court decision serves to remind employers that offering “shifting, inconsistent, and facially implausible” explanations for personnel decisions is an invitation to have them scrutinized by a jury.

In Hitchcock v. Angel Corps, Inc., No. 12-3515, Jennifer Hitchcock claimed the Indiana-based home care agency she worked for fired her because she was pregnant, in violation of federal law. The trial court dismissed the case, but the Seventh Circuit Court of Appeals ruled “a reasonable jury could conclude that Angel Corps’s explanations were lies,” so it sent the case back for further proceedings.

In the recent past, the courts established precise formulas for “direct” proof of employment discrimination and “indirect” proof, either of which could be used, assuming the employee had enough evidence to satisfy the relevant legal formula. But more recently, judges began talking about “indirect evidence under the direct method of proof” and other such confusion. So the courts stared backing away from the rigid formulas. The Hitchcock decision continues that trend by downplaying the detailed legal tests of the past and instead using a commonsense evaluation of whether a discrimination plaintiff presents enough evidence that a reasonable jury might believe her story.

The direct / indirect issue still comes into play because most employers don’t say things like, “I’m firing you because you’re pregnant.” Thus, a typical employment plaintiff is working with innuendo, suspicious timing, overheard remarks, and other such ephemera. A typical employer counters this kind of evidence with a “legitimate, non-discriminatory reason” for the employment action. Faced with hard evidence of non-discrimination and questionable inferences of discrimination, most judges will conclude there is nothing for a jury to consider unless the employee can show the so-called non-discriminatory reason is a lie—an excuse made up after the fact to cover over the tracks of unlawful discrimination. Then, it becomes a question of credibility: is the employer telling the truth or is the employee telling the truth. That is a question for a jury to decide.

And that’s why it is so important for employers to think before acting when making employment decisions. Employers should consider how an outsider might view the decision and satisfy themselves the reasons for it are well-documented and legitimate. You may have heard that Indiana is an “at will” employment state, allowing managers to fire employees at any time and for any reason. That’s technically true, but the rule has many exceptions. Take a look at the employment law posters hanging in your workplace.

Whatever you may believe about “at will” employment, business owners and other managers need to make evidence-based decisions. The Hitchcock case involved a bizarre incident where the employee was called to provide services at the home of 100 year-old woman who had died before Ms. Hitchcock arrived. Most businesses probably don’t face that problem, but every employer has to make decisions on when to hire, fire, discipline, promote, or reassign employees. Disgruntled workers will be quick to ascribe those decisions to unlawful discrimination if the employer does not have a clear method of making its decisions and communicating its reasons. A little deliberation on the front end can help spare employers the anxiety of waiting for a jury deliberation after the fact.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon investigation of specific facts. You should consult an attorney for advice regarding your individual situation.