Initially, the employee has the burden of producing circumstantial, direct, or statistical evidence from which the illegal reason, i.e., discrimination (or retaliation), may be inferred. Blackwell v. Sun Electric, 696 F.2d 1126 (6th Cir. 1983). As previously stated, there are many different types of evidence that can be utilized in proving discrimination including, but not limited to, evidence of disparate treatment and/or smoking gun admissions of discrimination (or retaliation) and/or admissions showing bias, etc.
Thereafter, the burden of production shifts to the employer to produce evidence that the employer's acts were the result of a legitimate reason, i.e., non-discriminatory (or non-retaliatory) reasons. --McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1084, 67 L.Ed.2d 207 (1981). Remember, under the Employee at Will Doctrine, it can be a good reason, a bad reason, a dumb reason, etc., just not an illegal reason.
In the event the jury finds that the employer met the burden of establishing a legitimate non-discriminatory (or non-retaliatory) reason for discharging the employee, then the burden again shifts to the employee to prove that the reasons articulated by the employer are pre-textual (or a cover up). Courts have instructed us there are three ways in which an employee can demonstrate that the employer's articulated reasons are pre-textual:
1. By showing that the reasons have no basis in fact;
2. If they have a basis in fact, by showing that they were not the actual factors motivating the adverse action; or
3. If they are factors, by showing that they are jointly insufficient to have motivated the adverse action. --Chappel v. GTE Products Corp., 803 F.2d 261 (6th Cir. 1986), cert. denied, 480 L.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987); and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Under well established case law, the jury's disbelief of the reasons for termination put forth by the employer (particularly if the disbelief is accompanied by a suspicion of untruthfulness) may, together with other evidence of retaliation/discrimination, suffice to show unlawful discrimination (retaliation). Rejection of the employer's proffered reasons for its actions will permit the jury, but not require the jury, to infer the ultimate fact of intentional discrimination/retaliation. Proof that the employer's explanation is unworthy of credence is a form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. --St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993); Reeves v. Sanderson Plumbing Products, Inc, 530 U.S. ____, 68 U.S.L.W. 4480 (2000). In other words, if the employee is able to demonstrate the employer is lying about the reason given for discharge, then this can go a long way in establishing a case, especially if there is other evidence there was an illegal reason. Also, if a jury believes the employer is lying, then it can get angry and anger usually translates into larger awards.
Examples of causes of action for wrongful discharge that were created by our state or federal legislatures would include the laws prohibiting various forms of discrimination, i.e., religion, disability, nationality, age, race, or sex discrimination, and laws prohibiting unlawful retaliation for engaging in certain types of protected conduct. For example, if a jury finds the Plaintiff’s membership in a protected class was a motivating factor in the Defendant’s adverse actions then the Plaintiff should win, even though other factors also motivated the employer’s actions. McDonnell Douglas Corp. v. Green, 411 US 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and Brown v. East Mississippi Elec. Power Ass’n, 989 F.2d 858 (5th Cir. 1993), see also, 42 U.S.C.§2000e-2(m). Also, it is unlawful for an employer to retaliate against an employee who has opposed an unlawful employment practice, such as discrimination (or sexual harassment), or who has testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII. - - 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 2000e-3(a); Curl v. Revis, 740 F.2d 1323 (4th Cir. 1984). In other words, complaining in good-faith to your employer that you believe you have been sexually harassed or discriminated against could constitute "protected activity," and it would be unlawful for the employer to terminate the employee as a result thereof.