Speaker 1: This video is all about liars. It explains what the heck pretext is in employment law and how fake reasons for termination play out in employment lawsuits. Keep watching. Let's first figure out what the definition of pretext is. It is a reason given in justification of a course of action that is not the real reason. It's a fake reason for why somebody did something. I like the way the Seventh Circuit case of O'Regan v. Arbitration Forum Inc. puts it. They say that it's a dishonest explanation. It's in fact a lie rather than an error or an oddity. In the context of employment law, this is really important. Nine times out of ten, employment lawyers like myself are representing an employee who was fired. One of our biggest jobs is to show that the reason given for the termination by the employer is not true. They never tell the truth if an employer in fact fired somebody because of their race, religion, because the employee blew the whistle, or because of their age. They're never going to admit that in court. It's very rare that we have direct smoking gun evidence. We're usually trying to prove the case circumstantially. We're looking at the facts and circumstances surrounding the termination, what other people saw, what other people heard the bad guy say, to prove that he or she had a bad motive in firing our client. So we are looking very closely at the explanation given for why somebody was fired. This plays out within the law. The McDonnell-Douglas burden shifting test, it's a seminal employment law case that every employment lawyer knows about. It's a burden shifting test where first the plaintiff employee has to put on allegations that they were fired for discriminatory reasons or for wrongful reasons, things that are against the law. Then the burden shifts down to the defendant employer to provide legitimate, non-discriminatory, non-illegal reasons for that termination. And that's very easy for them to do, because just think about it. You can come up with thousands of reasons why you decided to fire a particular employee. And they usually have a team of HR professionals and defense lawyers to come up with very legitimate reasons why somebody was fired. But then the burden shifts again to the plaintiff employee to show that those explanations are a lie or a pretext. If you can do that, you can prove your case circumstantially, you can beat motions for summary and judgment, and you can win at trial. Let's look at some core examples. In employment law, we're almost always dealing with a discrimination, wrongful termination, or whistleblower case. It's the bulk of what we do. And in these cases, generally the common theme is that somebody was fired. And generally, the employer offers a legitimate, non-discriminatory reason for that termination. So it becomes the employee's job and the employment lawyer's job to show that the real reason for the termination is one of these protected activities. So let's look at them real quick. In discrimination, the California Fair Employment and Housing Act, section 12940, subsection A, says that it is an unlawful employment practice for an employer to take an adverse action against an employee because of that employee's protected status. And those usually are race, religion, sexual orientation, age, disability, marital status, ethnicity, things like that. So the common example I give is either a race one or a gender one. Let's do gender right now. Imagine if you're a female working in a fraternity-style place of employment. There's lots of women who work at male-dominated environments. And often those environments are full of crude language, sexist comments, and just general intimidation towards females. Let's say you work there and you get fed up with it. You go and you complain to your boss. You say, I feel like I'm being picked on because I'm female and that there's all sorts of inappropriate sexist language being used here. It should stop. And your boss, being the class act that he is or not, fires you because you made those complaints. Well, that boss, because they're so sleazy, they're not going to come out and say, well, we fired her because she's female. No, they're going to say, oh, we fired her because she wasn't a team player. She was insubordinate. She was late a couple of times. Those are legitimate, non-discriminatory reasons, but then the burden shifts and it becomes the employee's job to show, no, in fact, it wasn't those fake reasons. Lots of people were insubordinate. I was never late. I was in fact fired because I complained about gender discrimination and gender harassment. That's how the case plays out. All right, let's look at wrongful termination cases. Tammany versus Atlantic Richfield. This is like the most important California Supreme Court case in employment law, which established wrongful termination common law. At the end of the day, you can't fire somebody because they're doing something in contravention of public policy. What I mean by that is, let's look at it as an example. Let's say you work for an auto part manufacturer or vendor, and your job is to sell tires to General Motors or Ford, and you come across a batch of defective tires that are going to be unsafe for people to drive on. You tell your boss, I'm not going to ship those. I know we've spent a bunch of money manufacturing them, but we can't ship them because they're not safe. Then your boss fires you. Again, your boss is not going to come out and say, I fired Bob because he refused to ship unsafe tires. No, they're going to say, I fired Bob because Bob wasn't a team player. Bob actually was written up a couple times for this, that, or whatever. They're going to give all sorts of legitimate non-discriminatory reasons, illegal reasons for your termination, and it becomes your job and your lawyer's job to show that's a lie. Same thing for whistleblower cases. California Labor Code 1102.5 says that you can't fire an employee who's refusing to violate a law, and California Health and Safety Code 1278.5 says you can't fire somebody because they're complaining about patient safety. At the end of the day, the same scenario plays out. If the employee engages in one of these behaviors and then the employer fires them, the employer is going to lie about it. They're not going to put that smoking gun evidence in writing for you to find later. So, it's going to be your job to show that the substantial motivating reason for your termination is that you engaged in those protected activities. I hope this video explains pretext in employment law. Take care. you