Ohio is an at-will employment state — this means that an employer may fire an employee with or without cause. While the reason for termination cannot be discriminatory or retaliatory, some unethical employers may attempt to mask an improper motive for termination with a reason that is “pretextual.” Importantly, it is illegal for an employer to claim that firing an employee is justified when the real reason is based on their protected characteristics.

What are Illegal Grounds for Termination?

In order to have an understanding of pretext in wrongful termination, it’s essential to know what grounds for firing an employee are illegal. Specifically, under both federal and Ohio law, an employer may not fire or discriminate against an employee based on their membership in a protected class.

Protected classes include the following characteristics:

• Race
• Color
• National origin
• Citizenship status
• Religion
• Age (for workers over 40)
• Disability
• Pregnancy
• Gender
• Genetic information
• Veteran status

In addition, it is unlawful for an employer to fire an employee if doing so would be in violation of public policy. Wrongful termination based on public policy violations can arise in cases involving whistleblowing, filing a Workers’ Compensation claim, taking time off for jury duty, or refusing to comply with an employer’s request to engage in illegal actions. Using a pretextual reason for an adverse employment action is a way employers may attempt to circumvent these legal protections.

What is Pretext in Wrongful Termination Cases?

Pretext in wrongful termination cases refers to a false or misleading reason for firing an employee that covers up the illegal reason for the termination. Simply put, with pretext, the employer pretends that the reason for termination is legitimate — when the actual reason is discriminatory.

Pretext can come in many forms. For instance, an employer may fabricate performance issues when an employee in a protected class has no history of discipline. They might also discipline an employee with protected characteristics when there are no consequences for other employees who engage in the same conduct — or fire an employee for “not fitting in” when the real reason was their age. Another example of pretext is claiming the termination was due to the company downsizing as a result of budgetary constraints where there was no shortfall.

How Do You Prove Pretext in Wrongful Termination Cases?

To prove an employer’s pretext in a wrongful termination case, an employee would need to demonstrate that the employer’s reason for firing them was false and the real reason was discriminatory. In other words, an employee must show that the employer’s stated reason for termination lacks any basis in fact.

Specifically, pretext can be shown through either direct evidence or circumstantial evidence. While direct evidence requires no inference, circumstantial evidence can help to build a claim based on the context surrounding the termination.

Evidence to establish pretext in wrongful termination cases can include:

• Suspicious timing evidence — Evidence that shows an employee is fired shortly after whistleblowing or engaging in other protected activity can support a wrongful termination claim.
• Comparative evidence — Demonstrating that employees who are not in a protected class engaged in the same behavior but were not terminated can be indicative of pretext.
• Documentation of performance reviews — A history of positive performance reviews can be used to show an employer’s claim of poor performance is a pretextual reason for termination.
• Witness testimony — Witness statements from other employees who observed instances of the employer’s discriminatory conduct can help strengthen a wrongful termination claim.
• Changing explanations — Showing that an employer’s reasons for termination are inconsistent or changed over time can be vital evidence to demonstrate pretext in a wrongful termination case.

If you are being subjected to discrimination in the workplace due to your membership in a protected class or your employer is retaliating against you for engaging in protected activity, it’s crucial to document each occurrence. This evidence may be crucial to build a solid wrongful termination claim in the event you are fired.

What Can You Do if You Were Wrongfully Terminated?

If you were wrongfully terminated based on a pretextual reason, you may be entitled to take legal action against your employer. Depending on whether your claim is based on state or federal law, you may consider filing a complaint with the Ohio Civil Rights Commission or the Equal Employment Opportunity Commission. These agencies can investigate your claim and help ensure the employer is held accountable for their wrongdoing.

You may also be able to file a wrongful termination lawsuit in court to recover your economic and non-economic damages. Remedies in a wrongful termination case can include reinstatement to your position, compensatory damages, emotional distress damages, attorney fees, treble damages, and punitive damages. In some cases, an injunction ordering the employer to stop their illegal conduct may be granted.

Contact an Experienced Ohio Employment Attorney

If your employer fired you for a pretextual reason, it’s essential to consult with a knowledgeable employment attorney to learn about your legal rights and options. Located in Westlake and providing trusted representation to clients throughout Ohio, the employment law attorneys of Lalak LLC fight for the rights of employees who have been wrongfully discharged by their employers. Contact Lalak LLC today to schedule a free, confidential, no-obligation consultation and learn how we can assist you.