Employer’s Inconsistent Position Statement Leads to Discrimination Liability


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

Normally, the first step in defending a discrimination claim brought by an employee consists of drafting and submitting a position statement to the investigating agency. A recent Eighth Circuit Court of Appeals decision illustrates the importance of properly investigating and preparing a position statement at the very outset of the discrimination action, and the downside of not doing so.

The Plaintiff in Jones v. National American University, claimed that she had been improperly passed over for promotion to an administrative position because of her age, 56. After she filed a charge of discrimination with the EEOC, North American submitted a written position statement denying her allegations and stating that she had not been promoted due to her deficient work performance.

However, at trial, North American’s witness testified that Jones had not been promoted because of her lack of management and marketing experience. Jones presented evidence to support her claim of age discrimination including the fact that the person who was chosen for the position was 34 years old, that the postings for the job did not list management experience as a requirement and that she was more qualified for the position than the younger person who was picked. The trial court allowed the employer’s written position statement into evidence to impeach the testimony of the committee members who had rejected Jones’ application for the position. Upon appeal, the Court noted that an employee could prove that an employer’s statement of alleged non-discriminatory reasons for making a decision was false or “pretext” by showing that the employer’s explanation for the adverse action had changed substantially over time. The Court pointed out that the employer’s position statement did just that, since it claimed that deficient work performance was the reason for the decision. However, during trial, it attempted to assert that lack of management and marketing experience was the reason for the decision. The court cited that shift in position as a reason supporting the jury’s finding of age discrimination.

The Jones decision illustrates the importance of devoting the proper time and attention to the very first action taken to respond to a discrimination charge, namely the drafting and submission of a responsive position statement. The failure to do so may impair the employer’s ability to defend the case during investigation and litigation.

 

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