Honest Belief, Reasonable Belief: Can Your Employer Fire You Based on a Mistake?

The Issue

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.

Background

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

  1. The plaintiff is a member of a protected class
  2. They suffered an adverse employment action (such as being fired),
  3. They were qualified for their position, and
  4. Circumstances were present that give rise to an inference of unlawful discrimination.

See Clay v. United Parcel Service, Inc., 501 F.3d 695, 703 (6th Cir. 2007); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

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.’

Wright v. Murray  Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998).

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.

Looking Forward

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.

The Boys Are Back In Town: Now, What to do with the Women?

The end of WWII laid out some problems for America: now that the boys were back, was there any use for working girls? Despite the fact that women were qualified for the positions they’d held during the war, most were let go in order to make room for men in the labor market.

In these “reduction-in-force” discrimination suits, a plaintiff must establishes a prima facie case by showing:

  1. They belonged to a protected group,
  2. The employer discharged them,
  3. They were qualified for the position
  4. There exists evidence from which a fact finder could reasonably conclude that the employer intended to discriminate.

However, the Courts are still split on one issue:

In order to show that they were qualified, does a plaintiff have to establish that they satisfactorily lived up to the “reasonable expectations” of the employer, or do they have to simply show that they satisfied the basic requirements of eligibility?

The Split

The 7th

The Seventh Circuit, in Coco v. Elmwood Care, Inc. (1997), held that a plaintiff must prove that they met the “legitimate expectations” of their employer. In cases such as this, where there is no direct evidence of discrimination occurring, the burden of proof lies on the plaintiff to show that there is a genuine issue of material fact.

Plaintiff here, Coco, was a maintenance supervisor in a nursing home. His regular responsibilities included documenting safety and maintenance problems in his weekly reports, taking care of getting these problems fixed, and conducting fire and other safety drills. His employer, Elmwood Care, Inc. claims that Coco showed deficiencies in his work, not because of his age. The court agrees that defendant’s reasons aren’t entirely credible. However, plaintiff did not meet the threshold requirement presenting evidence of his work, thus barring the defendant from having to present, in court, reasons for his termination.

The district court here granted summary judgment for the defendant on the grounds that the plaintiff had failed to fulfill his burden of proof. The court stressed the importance of this requirement as evidence for a plaintiff’s fulfillment of “legitimate expectations” rests on “demonstrating the existence of a genuine issue of material fact.” Without any proof that the discharge was could not have been a result of the actual work he was doing, there is no way to prove discrimination. The court operates under certain preconditions:

  • plaintiff must be a member of a protected class, and if they are not then they cannot have been discriminated against, and
  • plaintiff must show they lived up to the legitimate expectations of their employer, otherwise they cannot show they wouldn’t have been fired without discrimination.

The 8th

42 U.S. Code § 1981 states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

The Eighth Circuit held in Arnold v. Nursing and Rehabilitation Center at Good Shepherd, LLC, (2006) that the lower court ruling raised the standard set by the Supreme Court in order to show qualification.

Brenda Arnold, an African-American licensed practical nurse, worked at Good Shepherd. A resident accused her of verbal abuse, leading to an internal investigation by Good Shepherd. Subsequently, she was fired. A later investigation by the State of Arkansas concluded that there had been no verbal abuse, after which Arnold brought suit against Good Shepherd for violating 42 U.S. Code § 1981. The statute states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

Arnold’s qualifications spoke for themselves: she was a licensed practical nurse and had served for almost a year before she was let go.

Though the Eighth Circuit Court did ultimately affirm the lower court’s ruling, the decision’s explanation for the term ‘qualification’ led to a split in the circuit courts.

Why It’s Important

Employment discrimination is never straightforward. Employees have an increasingly difficult time winning cases against their employers, and a split in the circuit court system allows for one region to function with a different set of rules. The threshold is lower for the Eighth Circuit Court, leaving plaintiffs in the Seventh Circuit at a disadvantage.

Furthermore, when an employee is forced to prove that they had fulfilled the “legitimate expectations” of their employers, it is difficult for them to quantify what their employer’s expectations were and if they managed to live up to them.

Looking Forward

 The threshold for qualifications must be universal in all circuit courts. The split in circuit courts here makes it difficult for lower courts to make a decision that doesn’t place plaintiffs at a disadvantage, and it is necessary for SCOTUS to grant a writ in order to resolve this inconsistency in the law.