Employment & Labor Insider

As our readers know, the employer’s motivation is a key issue in an employment discrimination or retaliation case, or a wrongful discharge case.

"So, am I, like, a nice employer, or am I, like, an evil employer?"

Compare and contrast these scenarios:

Scenario One: Employer fires Susie, age 60, because it learned that she is embezzling from the company.

Scenario Two: Employer fires Susie because she is 60, and the company doesn’t want any old people.

Scenario Three: Employer fires Susie, age 60, because she is a poor performer.

Scenario Four: Employer fires Susie, age 60, because she is a poor performer. The manager who fired her is 35. For the past six months, this same manager has been firing his direct reports who are 50 or older, allegedly based on poor performance.

Ed, what’s my motivation?

In Scenarios One and Two, the employer’s motivation is clear -- for better or for worse. Three is less clear, and Four looks terrible but could conceivably be ok, depending on the employer’s true motivation. (Maybe all the over-50s really are bad performers. Unlikely, but possible.)

When you terminate an employee, you need to have a motivation that is not unlawful, and you need to be able to prove it in court.

If you have strong evidence of a lawful motivation, you may be able to get the case dismissed before it goes to a jury. On the other hand, if your evidence of motivation is squishy or inconsistent, you are probably facing a jury trial, with all of the associated stress, disruption, and expense.

Today’s case: What went wrong?

All of which brings me to this week’s case, about a law firm that fired an associate for poor performance only two months after she announced that she was pregnant.

Our plaintiff – we’ll call her “Ann” – was a seemingly well-regarded associate at her firm. During her first year there, she got all the raises and bonuses for which she was eligible. Several of her peers did not, so this was not a "participation trophy" workplace. Ann also got positive feedback from the partners with whom she worked.

Then Ann’s department had a big downturn in business. (Not Ann's fault.)

Right around the time of the downturn, Ann told her bosses that she was pregnant. They both seemed fine with it and congratulated her. One of the bosses was a partner who had taken two maternity leaves herself.

Believe it or not, this is the person who fired Ann.

Oh, for crying out loud.

And the reason the case will go to a jury, assuming the parties don’t settle, is that the judge could not definitively determine whether the partner’s true motivation was Ann's performance (legit) or her pregnancy (not legit).

According to the firm, Ann made work-related mistakes and was untimely on a couple of occasions.

But there was also evidence that Ann was overall good at what she did. Thus, although her mistakes were a concern, they might have been outweighed by her good work. (It also sounded like most of the mistakes had been caught and corrected before anything went out to clients.)

Oh, and I almost forgot: The firm apparently never counseled Ann about these issues, much less issued discipline or placed her on a performance improvement plan. It just went straight to termination.

Ann’s good work, and the fact that she qualified for all the raises and bonuses that the firm offered to associates, plus the lack of prior warnings, made the judge go, “Hmm.”

Things that make you go, "Mmmh."

Meanwhile, Ann had disclosed her pregnancy only a short time before the termination (see what I had to say recently about the importance of “timing” in retaliation cases). And her department was not doing well financially. And, as an employee who would soon be having to take maternity leave – paid maternity leave – she was arguably an economic “liability” to the firm and not an “asset.”

So Ann's case will go to trial. The judge is not saying the firm actually did discriminate against Ann because of her pregnancy. The jury will make that decision.

After-acquired evidence

This is a little off-topic, but the case also had an interesting “after-acquired evidence” issue. After-acquired evidence can significantly reduce the damage award in an unlawful termination lawsuit. It applies when an employer finds out after a termination that the employee did something else that would have resulted in immediate termination if the employer had known about it at the time.

Here's an example. Let's say that Ann was terminated under all the circumstances I’ve already described. Not an airtight case for the firm. But then, after the fact, let’s say (hypothetically!) the firm learns that she was embezzling the whole time she was employed there. Embezzlement is a legitimate reason for termination, right? So, even though the reason for the termination could have been stronger, the court can say, “Well, but she embezzled, and she would have been fired for that if the firm had known about it, so she isn’t entitled to any money.” (Or "as much" money.)

This defense gets used in real life because you find out all kinds of wild things during discovery in a lawsuit.

Our former employee is a meth-dealing arsonist who robs banks. YESSSSSSSSSSSSS!

In our real-life case, Ann did not embezzle. Or deal drugs, set fires, or rob banks.

But it was undisputed that, after her termination, she emailed a boatload of firm documentation to her personal email address. So the firm gave the after-acquired evidence rule a shot.

The firm lost on that for two reasons.

First, the firm’s policy governing what Ann did was on the wimpy side. It said that attorneys who violated the firm policy on confidentiality “will be subject to discipline including ‘possible’ separation from the firm.” For the after-acquired evidence rule to apply, termination must be a sure thing.  

Second, it was undisputed that Ann didn’t email the confidential material to her personal address until after she was fired. According to the judge, the “after-acquired evidence” rule doesn’t apply unless the misconduct warranting termination occurs before the termination. The idea is that the employee can't be terminated for misconduct that hadn't even occurred yet.

(I'm not sure I agree with the judge about this second point. In my view, if the employee committed post-termination misconduct that would have resulted in termination, that should at least cut off her entitlement to continuing back pay.)

Off-off-topic, I hope you like our snazzy new website. Many thanks to our Marketing Department, led by Jennifer Scotton, and our IT Department, led by Scott Southerland, for all of their excellent work!