In this article we will explore the one of the last things a plaintiff brining a disability discrimination case must consider where the discrimination involves a non-facially discriminatory policy or act. Not facially discriminatory means that the employment action happened for a reason besides an exclusion of disabled individuals. If the employee experienced the adverse employment action (not hired, passed over for promotion, fired, etc.) the employer can defend itself by stating that the decision it made was based on legitimate reasons, not based on the employee’s disability. This is also referred to as showing that the reasons were pretextual.

For example, if the disabled individual was not hired the employer could claim that it chose a more experienced individual; or if the employee was terminated the employer could claim that the employee had behavioral problems or committed misconduct.

The burden of production finally transfers to the employee to prove that the employer’s defense is actually pretextual (half truth or lie). The employee can prove that the employer’s response is pretextual by discrediting the explanation in a variety of ways, including:

• If the employer’s story has changed
• The employer didn’t follow its usual policies
• The employee’s work related problems are disproved
• The employer had a double standard in judging the employee
• A history of targeted harassment, or high level of scrutiny
• Timing: for example if the employer terminated the employee 1 week after learning of a diagnosis

There are a few limitations to showing pretext. One defense is stray remarks of an employer, for example 1 or 2 isolated comments that are not directly discriminatory usually cannot be enough to show pretext. Also, if the employer hired someone with allegedly superior qualifications, the disabled individual must show that actually they were much more qualified. The standard is quite high, it was articulated in a U.S. Supreme Court Case, Ash v Tyson Foods, Inc. (2006). The Court said that the disparity between the qualifications must be so much better that they “virtually jump off the page and slap you in the face.” Also, the employer’s mere knowledge that certain groups would be excluded by a particular policy is not enough to show discrimination unless the employer decided on the policy because of its effect on a protected class.

Before filing a case for discrimination contact Cunningham Law, APC. Call (951) 213-4786 today to schedule a free case evaluation.