Is My Employer Setting Up a Non-Discriminatory Justification for My Termination?

A.    The Employment Laws Protect Employees from Discrimination

The Federal and New York State, and New York City laws prohibit an employer from discriminating against an employee because of his or her race, color, national origin, sex, religion, age, disability, or other protected characteristic.  The Federal and New York State laws prohibit an employer from taking an “adverse action” against an employee for a discriminatory reason.  An “adverse action” can be a termination, demotion with a decrease in salary or wage, less distinguished job title, loss of benefits, significantly diminished job responsibilities, or other action that may be specific to the employer position or job duties.  The New York City Human Rights Law is broader and only requires an employee to show that he or she was treated differently because of his or her race, color, national origin, sex, religion, age, disability, or other protected characteristic.  If an employer unlawfully discriminates against an employee, the employee may be entitled to certain damages, including economic damages in the form of lost compensation (i.e. salary, bonus etc.).  

B.    Signs that an Employer is Setting Up a Pretextual Justification for an Adverse Action

An employer will rarely admit that it takes certain adverse actions (i.e. termination, demotion, etc.) for discriminatory reasons.  Instead, the employer will likely point to supposed poor performance, a restructuring or reduction in force, or some other non-discriminatory reason for the adverse action.  The employer also will likely take steps to create a record to back up the non-discriminatory reason.  For example, an employer may spend weeks or months documenting alleged performance issues so that the employer can point to poor performance as the reason for termination when it fires the employee even though the decision was actually motivated by discriminatory animus.  There are common practices that may signal that an employer is attempting to generate a pretextual, non-discriminatory reason for termination, including:

•    A supervisor micromanaging an employee and unjustly criticizing the employee’s performance; 

•    Setting unrealistic deadlines and/or performance goals for work assignments;

•    Removing an employee from or refusing to provide an employee with lucrative or advantageous work opportunities or assignments;

•    Giving an employee a negative performance review after the employee previously received mostly positive feedback; and 

•    Placing an employee on a performance improvement plan (“PIP”). 

After building a record of supposed poor performance, the employer may then take an adverse action believing that it has sufficiently disguised the discriminatory reason for the adverse action to avoid liability under the law.  However, in a lawsuit, even though the employer puts forward a non-discriminatory reason for the adverse action, the employee can still show that the non-discriminatory reason is pretext and that the real reason for the adverse action was motivated by discriminatory animus. 

If your employer has taken an adverse action against you for a discriminatory reason or you feel that an adverse action is imminent, it is important that you contact an attorney to fully understand your rights under the law.