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A Better Test for Proving Pretext?
For employment lawyers, the test for establishing pretext in discrimination cases can be elusive, to say the least. At Jottings By An Employer's Lawyer, Michael W. Fox likes the test set out last week by the 7th U.S. Circuit Court of Appeals in Yindee v. CCH Inc. As Fox quotes the opinion:
"[O]nce a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie, which permits a jury to infer that the tale has been concocted to conceal an unlawful truth. ... It is not enough to demonstrate that the employer was mistaken, inconsiderate, short-fused, or otherwise benighted; none of those possibilities violates federal law. ... Poor personnel management receives its comeuppance in the market rather than the courts."
The emphasis in that quote comes not from the court but from Fox, who comments: "The direct language of Judge Easterbrook set out in bold above, is, or should be, at the heart of any motion where pretext is an issue -- did the employer lie?"
Posted by Robert J. Ambrogi on August 14, 2006 at 05:13 PM | Permalink
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