In the Case of the Lost Job, the Lawyer Must Play Detective
A lawyer explores all the facts surrounding a COVID-19-related job termination to figure out where the truth lies—or at least where the evidence points.
May 14, 2020 at 05:57 PM
5 minute read
Lawyers who advocate on behalf of employees often operate as private detectives. It can be challenging for an employee to figure out on her own whether her termination was the product of some legitimate reason (like poor performance or job elimination) or an unlawful one (like discrimination or retaliation).
Our role requires a full exploration of all the facts surrounding the termination, including the underlying employment, to figure out where the truth lies—or at least where the evidence points. In these unchartered waters known as the coronavirus, this task can be particularly daunting to navigate alone. Is the employer exploiting the coronavirus to cover up what otherwise would be a clearly discriminatory or retaliatory termination, or is the company simply making difficult but necessary decisions to protect its long-term viability?
Consider a hypothetical employee who in September 2019 lodged a good faith complaint with Human Resources that she was being sexually harassed by the company's CEO. No employment lawyer would dispute that, in this example, the employee engaged in protected activity, and it would be unlawful to retaliate against her for doing so.
In order to establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) she suffered an adverse action; and (4) a causal connection exists between the alleged adverse action and the protected activity.
The causal relationship element may be established by circumstantial evidence, including that the adverse action followed closely in time to the protected activity. We generally refer to this concept as "temporal proximity."
If the employee was terminated or demoted within a few days or weeks of complaining about sexual harassment, for example, there very well could be sufficient temporal proximity for the employee to prove that, but for her complaint, she would not have been subjected to that action.
But what if the CEO got great legal advice and refrained from taking any action against her back then? Then the coronavirus comes along and gives the company a gift: the perfect "cover" to rid itself of the unwanted employee under the guise of pandemic. The employee can no longer avail herself of the doctrine of "temporal proximity" eight or nine months later, and she loses, right? Not so fast.
Courts have found temporal proximity to exist, notwithstanding the considerable passage of time between the protected activity and the retaliatory conduct. In doing so, they build upon the wealth of cases holding that temporal proximity between the protected activity and the adverse action should be measured from the earliest opportunity the employer has to retaliate against the employee. Enter the coronavirus.
Another opportunity for the employer to use Covid-19 as a sword to violate the law rather than as a shield to protect the company might occur in the context of a reduction in force or job elimination, purportedly connected to a diminution in the company's bottom line as a result of the pandemic.
Of course, there would be nothing unlawful with such employment decisions if they were free from bias. But if, hypothetically, employees in their 50s and 60s were included in the RIF and their much younger counterparts were spared, the coronavirus excuse may not cut it in court, and the employer may be found to have engaged in age discrimination in the termination process.
In order to establish a prima facie case for discrimination of any type, a plaintiff must show that: (1) at the relevant time, she was a member of the protected class; (2) she was qualified for the job; (3) she suffered an adverse employment action and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.
Under these facts, courts have found that the inference of age discrimination is established by the employer's choice to terminate those who are older and retain their peers who are substantially younger.
Of course, a similar inference could be reached with any other protected class adversely affected by the RIF or job elimination (such as race, gender, religion, disability, sexual orientation or pregnancy) where those in the protected class are subjected to the adverse action in disproportionate numbers to those similarly situated who are outside that class. Further, aside from scenarios in which whole protected classes are impacted by a RIF, an employer can attempt to "hide" its discriminatory decision vis-à-vis one member of a protected class by simply slipping him or her in among those impacted by (an otherwise legitimate) RIF.
The goal of the plaintiff's employment lawyer in any discrimination or retaliation case is to ferret out the true motivation underlying the employer's adverse action against the employee. Indeed, I sometimes wonder whether, in our former lives, the lawyers in my firm were all protagonists in mystery novels. Now that Covid-19 is in the picture, the employer is presented with the opportunity of burying that truth one layer deeper. While the task may be more challenging in this unprecedented time, with careful digging, the effective employee advocate will likely prevail in uncovering the true culprit—whether it is Covid-19, or an employer who is violating the law.
Nina Pirrotti is a partner with Garrison, Levin-Epstein, Fitzgerald & Pirrotti and a graduate of Yale Law School.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllADVANCE Act Offers Conn. Opportunity to Enhance Carbon-Free Energy and Improve Reliability With Advanced Nuclear Technologies
Trending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250