New Burden Placed on Employers to Disprove Discrimination

September 1, 2001

Last year, the United States Supreme Court increased the burden on employers to disprove claims of discrimination. In a case known as the Reeves decision, the Supreme Court, for the first time, allowed a jury to find that discrimination had occurred based on “inferences” of discrimination rather than on direct evidence of discrimination. In other words, instead of the employee having the burden of providing actual evidence that discrimination occurred, employers must now be prepared to provide proof that discrimination did not occur. This shift in the burden of proof can have a dramatic effect on the outcome of employment litigation and should cause employers to increase their efforts in documenting the appropriateness of their employment decisions.

Wisconsin is an at-will employment state. In general, that means that unless an employee is a state employee or is covered by an employment contract to the contrary, an employer is allowed to take adverse employment action against an employee (termination, demotion, reassignment, etc.) for any reason, or even for no reason, if the action was not done for a prohibited discriminatory reason. Prohibited discriminatory reasons in Wisconsin are race, color, religion, gender, national origin, age over 40, disability, marital status, sexual orientation, arrest and conviction record, membership in the National Guard or State Defense Force, or use of lawful products outside the workplace.

Before Reeves, if an employer could articulate a non-discriminatory reason for actions it took, it was necessary for the employee to provide evidence that the stated reason was not the real reason for the adverse employment action and that the real reason was a prohibited reason. To prevail, the employee had to make his or her case with more than mere argument that discrimination must have occurred. The employee had to provide some independent evidence of discrimination.

In Reeves, however, the Supreme Court ruled that if an employee could convince a jury that an employer’s stated reasons were not the real reasons for an adverse employment action, that could be enough for the jury to also find that discrimination must have been the reason, even if the plaintiff has presented no direct evidence that discrimination was the reason.

As a result, it is no longer sufficient for employers to merely articulate the non-discriminatory reason for their action. Employers now must be able to defend that their stated reason was the real reason for the action and that prohibited discriminatory intent was not a factor. Thus, documentation of the reasons for adverse employment decisions has become much more important. More than ever, employers must be consistent in stating the reasons for their decisions, to the employee, within the company, and throughout every adversary proceeding. Any inconsistency as to the stated reasons for adverse action and any inability to verify those stated reasons can subject employers to liability. After Reeves, the burden has been placed on them.

If you have questions regarding the above, please contact Kevin Wolf, the author of this article, or any of the attorneys in the Litigation & Dispute Resolution Practice Group of Ruder Ware.

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