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In racial discrimination case, proving pretext may be key

The term "pretextual" can be a major point of inquiry in many employment discrimination cases. This is because an employment discrimination suit in Michigan or elsewhere may boil down to two versions of what happened. The plaintiff may have proved the likelihood of racial discrimination. However, when the defendant goes forward with its evidence, it may show that it had a plausible non-discriminatory reason for the action. It is then up to the plaintiff to prove that the defendant's reasons are pretextual and thus false.

Pretext is established by a number of methods. First, an employer's changing reasons for the action can be proof of pretext. The plaintiff can show that a discriminatory reason is more likely than not. The plaintiff can demonstrate that the employer's explanation is not credible or is simply nonsensical. Statistics can prove pretext, as well as witness statements showing bias or falsity.

In a recent case, an African-American male who had 40 years of service for Evergreen Packaging, Inc., sued the company claiming racial discrimination. The plaintiff was a supervisor over five white employees. On two occasions, one of them caused the plaintiff to be sprayed with water. After the second incident, both employees received written counseling.

On another occasion, the white employee came after the plaintiff with a wood hook. The employer responded by giving counseling to both of them. The African American expressed that he would "go postal" and would harm people if the white employee caused him to lose his job. The employer sent him home for employment violations and wouldn't let him come back until he completed anger management courses and was medically certified as safe.

The African-American sued Evergreen. The federal district court judge dismissed the case by saying that the plaintiff could not prove that the employer's explanation was pretextual. The 8th Circuit, however, disagreed and reversed. The 8th Circuit held that a jury could find that this was racial discrimination due to the comparatively favorable treatment given to the white employee when looking at all of the circumstances. These facts would likely be similarly treated in a federal court in Michigan.

Source:, Race discrimination: Employee suspended for threat has viable claim, court rules, Brian T. Benkstein, Feb. 6, 2014

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