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Let’s state with the premise that most of the dumbest bosses and supervisors know that it unlawful to discrimination against employees on the basis of their race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, disability, and age. As a result, if your boss or manager is planning on discriminating against you, he/she/they is likely going to try to do so behind the lie of another reason. Does this work? The short answer is that it depends on if the judge or jury believes your boss’ excuse or realizes that it is a smokescreen. Courts handle employment discrimination cases by having you, the employee, first prove that the employer’s adverse actions look discriminatory. (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?What Is An Adverse Employment Action?) The burden then shifts to your employer to give the court a nondiscriminatory business reason why they took that action against you. In other words, your boss says something to the effect of “No, your honor. I didn’t fire them because of their race/gender/disability/etc. I fired them because they were late to work one time three weeks ago!” If your employer gives the court such a reason, the burden then shifts back to you to prove that the excuse is a lie or did not really motivate the manager or supervisor, and that the real reason was that your boss was discriminating against you all along. In the legal profession, we call this false excuse “pretext”. If you prove that their excuse is pretext, then you win. (Best Law Read: Employment Discrimination Question: What Is Pretext?How Do I Prove That My Employer Lied About Why I Was Fired?; How Do I Prove Pretext For My Wrongful Termination?; Yes, Employers And Their Attorneys Lie).

Pretext can be proven in many different ways. A reason can be pretextual if it does not make any sense, if it contradicts previous reasons given, if other evidence suggests that another reason is the true cause, and the list goes on. An important thing to point out is that the reason your boss uses can be true, but it still can be pretext if there is still discrimination at the root of your case. For example, your boss could fire you and say it was because of that one time you showed up late to work three weeks ago, but if you are the only woman in the office and your boss has said numerous sexist remarks in the past, a court could still find your boss’ reason to be pretext.

What if my boss launches an investigation just to find a good excuse to fire me? Is that wrongful termination?

Best Employment Discrimination Lawyer Reply: If your boss or manager finds a reason to fire you through an investigation, the court will look at the motivation behind the investigation. Namely, was the investigation a good faith effort to find out if the rules were broken or was it just your boss and HR tearing through the evidence to discover a justification for the illegal decision that they have already made. If the investigation was motivated for legitimate reasons, then the courts may well find that your firing was legal. However, if the investigation was motivated to cover-up the real illegal reason behind your firing, then the investigation itself shows pretext and likely a wrongful termination.

A good example of this principle in real life was the case of Canada v. Samuel Grossi & Sons Inc. Joseph Canada worked for a steel company and his boss, Grossi, decided to make trouble for him because Joseph dared to be black, disabled, and in need of medical leave. As a result of the discrimination and retaliation he faced from his employer, Joseph filed a charge with the Equal Employment Opportunity Commission (“EEOC”) and then filed a lawsuit. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge).

Grossi tried to intimidate Joseph into dropping the lawsuit, saying “I’ll just have other African-American employees say the opposite of what you’re saying.” But threats did not stop Joseph from using the law to protect his rights, so Grossi decided to get rid of him by firing him. Of course, Grossi knew that if he fired Joseph for without a good excuse while Joseph was pursuing a lawsuit against the company, then all that would do would be to give Joseph another thing to sue the company over. Grossi’s solution to this problem was simple: he decided that he would tear the factory apart in order to find an excuse large enough to hide his bigotry behind.

Joseph kept some belongs in a set of lockers at work. Hoping that he could find something incriminating inside, Grossi waited until Joseph had left work before approaching the lockers with bolt cutters and a forklift. He had Joseph’s locker cut open and all of his belongings pulled out. Among those belongings was a cell phone. Deep, deep inside this cell phone, beneath a year’s worth of texts, they found a set of “intimate” texts between Joseph and various women. These texts were of a sexual nature and were sent during work hours. Grossi accused Joseph of texting sex workers while at work and then fired him.

In finding this excuse, Grossi discovered that he needed an entirely new excuse to explain away why he ripped open Joseph’s locker and searched through his belongings. Grossi came up with two separate cover stories, one for the locker and another for the phone. The cover story for the locker was that the company was supposedly moving the whole set of lockers in order to have them not block a security camera. For this purpose, all of the lockers had to be emptied. For the search of the phone, supposedly a company phone of a similar make and model had been lost. In what he assured the court was simply an act of due diligence, Grossi had one of his underlings open the phone and search through over a year of texts until “accidently” discovering the sexual texts. Why? He claimed that it was the best way of finding out if the phone was the missing company phone.

Believe it or not, the trial court took Grossi’s side. Of course, judges are not perfect. (Best Law Read: According To Judges, Are Bumblebees Considered Fish?Judges Disagree Whether Elephant Is Person).To be specific, the trial court purely focused on the fruits of Grossi’s investigation and did not even consider the motivations behind the investigation itself. Joseph’s lawyers did their best to show the court the absurd nature of Grossi’s search, but their words fell on deaf ears. To quote the trial court “[Joseph’s arguments] relate to the propriety of the search of plaintiff’s cellphone, not whether defendant terminated plaintiff’s employment for appearing to solicit prostitutes while clocked in and on company property.” As a result, the trial court found against Joseph without even letting the case go before a jury.

Thankfully, Joseph appealed this clearly wrong decision to the Third Circuit Court of Appeals. The Court of Appeals applied some common sense to the matter, holding that the motivations behind conducting an investigation are just as important as the results of said investigation. The circuit court asked many important questions that the trial court failed to ask. Why did Grossi have to empty all of the lockers when he could have easily used a forklift to move the lockers without violating the privacy of his workers? Why did Grossi go through the contents of a cell phone when he had the missing cell phone’s serial number on record and could checked if the numbers matched without opening up the cell phone? And, perhaps most importantly, why on Earth was it necessary for Grossi to go through more than a year’s worth of texts when merely opening the phone would allow someone to confirm that it was not a company phone? Grossi was not able to give the Court of Appeals satisfactory answers to these questions. Therefore, the Court of Appeals held that it was perfectly possible for a reasonable jury to find that this entire investigation was just Grossi trying to “dig up dirt” on Joseph. In accordance with this decision, the circuit court overruled the trial court. Joseph would have his day in court after all.

Do I need an attorney to help sue my employer for discrimination and wrongful termination?

Best Employee’s Rights Lawyer Answer: The fact that the trial court initially ruled against Joseph is a great reminder that you need to call the right attorney to help you navigate complex law pertaining to employment discrimination. If you believe your boss is using an investigation as a smokescreen to discriminate or retaliate against you, then call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm, and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

The wrongful termination and employment discrimination materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking: “How do I sue for being wrongfully fired because of my race?”, “I’m being discriminated at work by my manager because I’m Hispanic?”, “my boss harasses and discriminates against women workers” or “How do I find an employment attorney near me”, your best option is to contact an experienced attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.