Proof of general misconduct is not enough
Labor law seeks to define how people at work relate to each other. While there are laws of economics, and yes, even some economic laws, such as securities laws and antitrust laws, in general, the job of law is not micro but macro. Employment law focuses on what society has decided is most important, the macro issues. It leaves intact the micro-problems of how the business is run. But when an employer crosses the line by discriminating or harassing, the right to run a business the way he wants ends.
Macro labor law issues are discrimination, whistleblower protection, safe working conditions, workers’ compensation, and wage protections. Just about everything else an employer can do is primarily up to the employer. Whether you agree politically or not, the California Labor Code defines the starting point of employment as the right of either party to terminate employment at will. Historically, courts have defined this right “at will” as one of arbitrary prerogative to resign or fire. But that judicial policy of “non-intervention” is limited to micro-issues. When it comes to discrimination, whistleblower retaliation, failure to pay wages when and as due, failure to provide safe working conditions, or other enumerated legal protections, courts basically say: the “at will” rule does not apply.
Motivation Test: Difficult Goal Possible
The “why” of the employer’s decision to fire an employee is like a weapon that is never seen in the shot, only in the smell of smoke that follows. As in all cases in which the suspect is questioned, the motive becomes central. The boss always, I repeat, always, has an alibi. The employee a) just didn’t measure up; or b) he was a lousy employee; or c) she was a good employee, but we had to fire her as part of a layoff.
There are two types of evidence to show that an employee was unfit for work: objective and subjective. Objective evidence is more reliable in general, for example, lousy sales. But subjective factors can be persuasive if the testimony is overwhelming and credible that no one could stand the employee. Almost as sure as an alibi, an employer will rally a herd of fearful current employees to repeat the party line: I found Plaintiff very difficult to work with.
Does this mean that only nice people should win lawsuits? Sometimes a difficult employee is also a pregnant woman fired because she will need time off for her pregnancy. Sometimes a negative employee with an attitude is an African American fired because he is African American. Sometimes the employee who entered the wrong data in a bid proposal is a 62-year-old employee who is fired because a young boss perceives him as too old for the job. The point is that human motivation is a cocktail of emotions. How does a jury separate mismanagement from illegal management?
The situation is reminiscent of the 2016 presidential election. It appears, according to political experts, that the public viewed both candidates unfavorably. But, what would happen if in a vote the two candidates had the same disapproval, but it was decided that candidate Clinton was less qualified because she was a woman? There are two considerations here: a) the voter is likely unwilling to see, admit, or accept her gender bias, and b) the unconscious bias really made a difference. That is, voter bias was a “substantial motivating factor” for why she cast her vote for Trump. If there were 12 Trump supporters on the jury to decide the case for gender bias, they would have to find in favor of Clinton, if they comply with the law.
There are no perfect employers. There are no perfect employees. A jury deciding a whistleblower discrimination or retaliation case, or perhaps a defamation or harassment case, will find more gray hats than black or white hats.
“Substantial Motivating Factor”: A Simplified Art Term
What then is the plaintiff’s burden of proof in a discrimination case? You may be surprised to learn that a) the motive is a critical piece of evidence and that b) the smoke will suffice. No one expects to see the gun go off. They may not even see the gun. But they have a right to smell the gunpowder on the manager’s sleeve, even when he comes up with numerous alibis.
In Labor Law, the Plaintiff’s task is to prove that the “substantial motivating factor” of the decision to dismiss an employee was the unlawful reason. That means there can be multiple co-occurring reasons. But the fuel additive placed in the manager’s tank had an illegal purpose. That mixed fuel runs the finishing engine.
follow this formula [because it is the law]:
- The Claimant is in a “protected category,” for example, over 40, or disabled, or a minority.
- Claimant was qualified for the job and as qualified for the job as the survivors.
- The Complainant was doing a reasonably good job, surely not perfect, but good enough;
- There was work to be done;
- Plaintiff was fired.
- Someone not in the same “protected category” takes over the job, replacing the Complainant, or benefactor of some or all of her reassigned duties;
According to employment law, if the Plaintiff stops here in the trial and the Defendant has fallen asleep during the trial, the Plaintiff wins. But the Defender doesn’t sleep. The defendant has alibis and wants you to listen to them. Stated another way, Defendant wants Plaintiff to have the ultimate burden of proving that discrimination was the cause of the termination.
So now the documents and witnesses are paraded before the jury to prove that Plaintiff was a) a scoundrel; b) an incompetent bum; c) a nice guy with few skills or no motivation; od) a great guy who had to be fired anyway. Remember, no employee is perfect. He will have documents and witnesses. Also know that a layoff is an excellent smoke screen to hide illegal discrimination. We all know the stories of how older workers disproportionately bear the brunt of a downsizing.
At this point, the burden of proof returns to the employee. It goes something like this: the reasons just given by the employer for my dismissal are not the real reasons. Here’s evidence of a) how biased and distorted the reasons are, and b) how others not in my “protected category” didn’t do better than me, but are still working there. In the jargon of the law, this is called a pretext test, and if successful, the burden shifts back to the employer to reinforce the “dirt” on the employee. So it goes, back and forth, until the jury is instructed to reach a verdict. Please note that nowhere in this change in burden of proof is the Plaintiff required to present direct evidence of an unlawful motive. The smoke will suffice if the employee manages to prove that the reasons stated by the employer for the dismissal are not credible. Think of this pretext test like this: yes, the employer had these other reasons, but these reasons were like fuel that would not ignite a decision. The catalyst was that the Claimant was too old.
Discrimination Test: Conclusions
Bias is unconscious and illegal. Give that a moment’s thought. We are labeling an employer with liability for an unconscious mental or emotional process. Give this secondary conclusion yet another moment of reflection. We are placing the burden of proof on the employee to show that this unconscious process motivated the decision to terminate their employment. But it can be done if the jury understands that the burden of proof is not absolute certainty. The court must instruct the jury to understand that a juror may have less than complete certainty. The jury is directed to find only that the most likely explanation for the dismissal was illegal bias. We know that real people in real work situations don’t brag about their biases. We will never hear that kind of testimony in court. The best an employee can present is indirect evidence, and the burden of proof is only to show that it is more likely than not. [51% likely] that illegal bias caused the termination.