Employer's rebuttal #17
by Ross Runkel at LawMemo
Once an employee provides a court with a prima facie case, then the employer is allowed to rebut that case. Meaning what?
The type of rebuttal will depend on the type of prima facie case the employee used.
If the employee showed that the employer had a "facial" policy of unlawful discrimination, an effective rebuttal will be limited. Assuming a facial policy of hiring only women for a particular job, the employer must show that hiring women only is a bona fide occupational qualification (BFOQ). Essentially, that means that only a woman can do the job. Examples: wet nurse, attendant in a women's rest room. If the employer hires only French people to cook in a French restaurant, that's probably a BFOQ, but hiring only French janitors would not be. The burden of proof will be on the employer to prove this is a BFOQ.
If the employee uses "direct evidence" or "circumstantial evidence," then the employer rebuts by "articulating" a "legitimate non-discriminatory reason."
This means the employer tries to show that the reason the individual was not hired (or was fired, etc.) was something other than the reason that the employee claims. So, if the employee claims the reason was race, the employer will try to show that the real reason was poor performance, bad references, tardiness, or whatever - anything other than race. (At this point the employer needs to produce some evidence, but does not have to convince the court that it is true.)
The reason doesn't really have to be "legitimate" or "non-discriminatory." If the employee is claiming the reason was race, then the employer can rebut that by showing that the reason was age. Even though age is not a legitimate reason, it is a reason other than race, so that will work.
The effect? If the employer puts on evidence of a legitimate non-discriminatory reason, all that does is rebut the employee's prima facie case. It doesn't mean that the employer necessarily wins.
The employee then has an opportunity to prove that the reason asserted by the employer is really just a "pretext," or a fake or a cover-up for the real reason.
Coming next: Pretext #18: Employment Law 101
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