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What is a Pretext Firing?

Posted by Kira Fonteneau | Apr 21, 2018 | 0 Comments

You may have heard the term “pretext” when discussing workplace discrimination or a wrongful termination. So, what exactly is a pretext? A pretext is basically just a made-up reason for terminating someone, when the real reason is unlawful or improper. When you think pretext, think pretend, because sometimes employers will pretend that they terminated an employee for a legitimate reason, even when the real reason is discriminatory. The good news is that there are sometimes ways to prove that the reason given is just a pretext, and thus unlawful.

Unlawful Grounds for Termination

Before you can really decipher whether your employer is lying about the reason for your termination, it is important to know what reasons are generally considered unlawful. Under the Civil Rights Act of 1967, the following are not lawful reasons for firing an employee:

  • Race
  • Age
  • Gender
  • Religion
  • Veteran status
  • Disability
  • Pregnancy
  • National origin
  • Genetic information
  • Sexual harassment
  • Equal compensation
  • Retaliation

Common Types of Pretext Firings

Now that you know the reasons for which an employer cannot fire you, consider how some employers may try to conceal their true motives. Obviously, it can take just about any form, but these are some of the more common examples:

The Make Believe Downsizing

An employer may try to say you were downsized due to budget shortfalls, or maybe the company just had a rough year. In most cases, employment is at-will, meaning an employer has a right to terminate you with or without cause. If it turns out that there is no budget shortfall or the company is actually growing, then this could be a strong indicator of a pretext reason for your termination. Naturally, the more facts and details you have, the better. These cases are all about facts.

What is Good for the Goose, May Not be Good for the Gander

Employers should be treating all employees the same in the same situations. If an employee of one particular religion is singled out for termination after making a relatively small mistake at work, while all other employees who made the same error kept their jobs, then using that violation of company policy may well be a pretext for a religious reason for termination. This would be unlawful and may give rise to a potential discrimination case against the employer.

It is all About the Timing

If you just filed a workers' compensation claim or reported illegal activity under whistleblower protections, and your employer suddenly decides to terminate your employment, the reason given may not be the real reason. If the timing is suspicious, you may also be dealing with a pretext firing.

Euphemisms can be Telling

We are all familiar with euphemisms – those words we say when the word we want to say is not appropriate. In regular conversation, things like “Gosh,” “darn,” or “shoot” may stand in the place of otherwise profane or impolite words. The same is true of an employer's use of certain euphemisms. Has your employer made veiled comments about age?

Perhaps you were fired because your employer is looking for “fresh young talent” or because the company is looking for “energetic new workers.” If the company is laying off aging employees and hiring younger, often lower-paid replacements, “new ideas” may be a pretext for age discrimination.

Fighting Back Against Discrimination

If you believe you have been fired for an unlawful and discriminatory reason, you may be dealing with a pretext termination. Your career and livelihood are at stake, so do not take chances. Contact an experienced employment law attorney who can discuss your case and help you determine whether your termination may be discriminatory. Throughout the Birmingham area, We are lawyers for working people. We want to help you when you need it most.

About the Author

Kira Fonteneau

Partner and Managing Attorney of the Alabama Trial Practice Group at Barrett & Farahany Kira Fonteneau is a partner and the managing attorney of the Alabama trial group of Barrett & Farahany. Kira chose to specialize in employment law because she wanted to help employees take back power. ...

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