A real-world example was seen in a recent Florida case that was litigated in federal court. See, Washington v. Blue Grace Logistics, LLC, 2018 U.S. Dist. LEXIS 1712, at *10 n.5 (M.D. Fla. 2018). In this recent Florida case, the employer spent a lot of money on preparing a Motion for Summary Judgment in which it argued that the employee abandoned his job. The employee responded that the employer’s position was inconsistent with the position the employer took in regard to the employee’s unemployment claim. The judge agreed, and refused to grant the employer’s Motion, ruling that the jury should determine this matter. The judge considered the employee’s argument to be persuasive that the employer did not challenge the employee’s claim for unemployment benefits based on job abandonment. Essentially the judge was persuaded by the concept that if the employee really abandoned his job, as the employer was claiming in the discrimination lawsuit, then the judge would have expected the employer to take the same position when the employee filed for unemployment compensation benefit. Therefore, if the employer takes a different position with unemployment, the judge may view it as being inconsistent with the employer’s stated reasons for terminating the employee. This case demonstrates how a Florida employer’s response to an employee’s application for unemployment benefits should be very closely scrutinized and coordinated with human resources and the labor and employment lawyer handling the litigation.
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Therefore, most employment discrimination and retaliation claims in Florida involve circumstantial evidence, which follows a three steps process: (1) the employee shows a prima facie case; (2) the employer explains a legitimate, non-discriminatory reason; and (3) the employee’s proof of “pretext.”
The employee’s burden for establishing a prima facie case is very minimal, and that is often easy for the employee to meet. Therefore, the burden is shifted to the employer to produce evidence to demonstrate the legitimate, non-discriminatory reasons for taking the adverse employment action against the employee (such as firing the employee).
How an employer’s careless response to Unemployment Compensation can damage its defense in an employment discrimination or retaliation lawsuit.
Assuming that the employer can demonstrate that it had a legitimate reason, then the court will focus on whether that reason was fake or pretext.
In order for an employee to demonstrate that the employer’s reason is pretext, the employee usually focuses on their prima facie case and also shows sufficient evidence to reject the employer’s stated reason.
One method of proving pretext is to show evidence that the employer’s stated reasons are not believable. This is because if a jury could decide that the employer is not telling the truth about why it took the action it did, it may reasonably infer that the employer’s motive was unlawful discrimination. One tactic that employee lawyers use is to try and show evidence of inconsistent or after-the-fact explanations for the employer’s decision.
An employer can hurt itself if it fails to remain consistent with the reason it originally gave. A real-world example of how inconsistencies can hurt an employer is when multiple people handle different aspects of HR and they fail to coordinate their responses. As an example, if there is a claim for unemployment compensation benefits, the person handling the employer’s response better be in constant communication with HR and legal counsel to ensure that the position taken in the unemployment matter is consistent with the employer’s position in relation to an EEOC charge or FCHR response or in responding to an employment discrimination lawsuit, such as Title VII, or the ADA, or the FMLA, etc. It is critical that the employer’s different managers and departments are communicating in relation to the terminated employee’s unemployment claim.
Labor & Employment law - Employers only
In general, cases of employment discrimination can be proved through either smoking gun evidence, called direct evidence of discrimination, or circumstantial evidence. It is very rare to have direct evidence, such as a statement by the boss to fire the employee because she is pregnant or Black or too old or disabled, etc.
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