When an employer fires an employee, and the employee sues for discrimination, the employer typically justifies the firing by showing a “legitimate, nondiscriminatory reason” (LNR) for it. But what if that reason turns out to be a mistake?
An Honest Belief
Many federal courts hold that an employer does not violate Title VII, or other anti-employment-discrimination statutes, if the employer fires the employee based on an “honest belief” in facts that suggest there is a legitimate, nondiscriminatory reason to fire the employee. This principle seeks to draw a firm line between intentional discrimination against someone for their age, sex, etc. and firing them for a valid (if incorrect) reason.
What does “honest belief” mean in practice? The Sixth and Seventh Circuits have split on how litigants can dispute an employer’s LNR if that LNR is based on an honest mistake. The split is so fundamental that one circuit puts the burden on the plaintiff, and the other on the defendant, to show that the employer’s honest belief was or was not honestly held.
Several federal statutes protect against discrimination in the workplace. Title VII of the Civil Rights Act of 1964, allows a person to sue an employer if the employer discriminates against them on the grounds of race, sex, color, religion, or national origin. The Age Discrimination in Employment Act does the same thing for age; and the Americans with Disabilities Act for disability.
A suit under these statutes generally works like a ping-pong game between the plaintiff and defendant. First, the plaintiff “serves” by showing what in law-speak is called the “prima facie” case (Latin for “first appearance”). This, basically, is the upfront reason to believe that something discriminatory happened, and plaintiffs are supposed to be able to meet this initial burden easily. They have to show that
- The plaintiff is a member of a protected class
- They suffered an adverse employment action (such as being fired),
- They were qualified for their position, and
- Circumstances were present that give rise to an inference of unlawful discrimination.
Next, the “return”: the burden shifts to the employer, who must articulate a “legitimate, nondiscriminatory reason” (LNR) for the rejection. McDonnell Douglas, 411 U.S. at 802.
Finally, the volley: if the defendant articulates its LNR, the plaintiff then has an opportunity to show that the LNR is merely a pretext for the discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The Honest Belief Rule
One good way for plaintiffs to show that the employer’s LNR is pretextual is to show that employees similarly situated to the plaintiff were treated better. For example, if the employer refuses to hire a female employee because she was not a college graduate, the female could point to males hired for the same position who also lack college degrees. That suggests the employer’s LNR is bunk—and sex discrimination is much more likely.
Honest belief comes in at the next stage of the ping-pong point. Suppose a plaintiff is successful in showing that the employer’s LNR is false—in the earlier example, she was, in fact, a college graduate! One might think the plaintiff, at this point, had hit a screaming winner down the line—but the “honest belief” rule actually allows the defendant to hit the ball back again.
As stated by the Seventh Circuit, the “honest belief” rule says that an employer’s LNR is not pretext for discrimination if the employer honestly believed in the LNR—even if the plaintiff shows the LNR to be “mistaken, trivial, or baseless.” Kariotis v. Navistar International Transportation Corp., 131 F.3d 672, 676 (7th Cir. 1997).
Defendants who satisfy the “honest belief” rule may be entitled to summary judgment, which defeats the plaintiff’s claim before the plaintiff has a chance to make the case to a jury.
A Split of Burdens
The Seventh Circuit
In the Seventh Circuit, the plaintiff bears the burden to come up with facts that undermine the honesty of the employer’s belief in its LNR:
To successfully challenge the honesty of the company’s reasons [plaintiff] must specifically rebut those reasons. But an opportunity for rebuttal is not an invitation to criticize the employer’s evaluation process or simply to question its conclusion about the quality of an employee’s performance. Rather, rebuttal must include facts tending to show that the employer’s reasons for some negative job action are false, thereby implying (if not actually showing) that the real reason is illegal discrimination. . . . [T]he question is not whether the employer’s reasons for a decision are ‘right but whether the employer’s description of its reasons is honest.’
Kariotis, 131 F.3d at 677 (quoting Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992).
In Kariotis, a 57-year-old employee sued her employer, Navistar, for age and disability discrimination. Navistar fired her and replaced her with a younger woman after it suspected her of exaggerating the effects of knee surgeries to take unwarranted time off. Kariotis responded that she was indeed debilitated by her injuries and offered medical evidence from her doctor. In response, Navistar pointed to the fact that it had hired a private investigator firm to watch Kariotis moving about – and Navistar said that it honestly believed the P.I.’s findings that Kariotis was not as disabled as she claimed. The Seventh Circuit held that Kariotis at most had shown that Navistar was “careless in not checking the facts before firing her,” but that was not enough to carry her burden of showing illegal discrimination.
The Sixth Circuit
The Sixth Circuit puts the burden on the defendant, requiring it to produce facts that justify its honest belief:
‘[t]o the extent the Seventh Circuit’s application of the ‘honest belief’ rule credits an employer’s belief without requiring that it be reasonably based on particularized facts rather than on ignorance and mythology, we reject its approach’). Under this approach, for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, ‘the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.’
In Clay v. United Parcel Service, Inc. (6th Cir. 2007), for example, a UPS worker was fired allegedly for missing three straight days of work. He countered that, based on the timing of his availability and the termination letter, he was given only two days before being fired. UPS claimed that it honestly believed Clay violated the three-day rule, but that wasn’t enough for the court. UPS had a burden to show “reasonable reliance on the particularized facts that were before it at the time the decision was made.” Clay, 501 F.3d at 714. UPS was “silent” in the face of this burden, see id., so it was error for the trial court to grant summary judgment to UPS based on the honest belief rule—the case should go forward to trial for a jury to decide the honesty of UPS’s belief.
Honest-belief cases will be driven by their facts, which will differ significantly from case to case. But, in all cases, the split starkly switches the burden of proof from plaintiff to defendant, or vice versa, depending on which circuit’s law applies.
For further reading, Noam Glick’s student comment for the Loyola of Los Angeles Law Review supports the Sixth Circuit, but Professor Ernest F. Lidge III in the Oklahoma City University Law Review favors the Seventh Circuit’s approach.