Many times, an employee comes to see me and asks me how strong his/her case is.  Often, i do not know.  It is hard to gauge the strength of a case until we know the reasons used by an employer for a questionable adverse personnel action.  Indeed, sometimes those reasons change over time.  

In a reent case, the 8th Circuit Court of Appeals has confirmed that yes, shifting reasons over time do help show pretext.  See report.  In Jones v. National American University, the plaintiff employee was turned down for a promotion to the Director of Admissions.  The plaintiff was in her mid-50’s.  The plaintiff had spoken with one of the decision-makers about another applicant who was in his mid-50’s also.  This particular decision-maker had mentioned that he was not sure he would want a "grandpa" working with high school students.  The school later picked a 34 year old woman for the position.  

The plaintiff quit when she was not picked for the position.  When she quit, the same decision-maker told her that the person picked was simply the better choice long-term.  

The plaintiff filed with the EEOC.  She claimed she was not hired due to her age.  The employer responded to the EEOC that Ms. Jones was not picked because of her poor work performance.  But, at trial, the employer claimed no, it was actually because she lacked management experience. Indeed, at trial, the testimony about the plaintiff’s work performance was all positive.  And, none of the job postings listed management experience as a requirement.  Ms. Jones also introduced evidence showing that she was more qualified for the position than the younger person who was picked.  So, the employer’s case essentially fell apart at trial. 

The reasons for the selection changed at trial significantly.  Shifting reasons suggests pretext. 

We have known since the decision in Reeves v. Plumbing Products, Inc., 530 US 133 (2000), that the US Supreme Court accepts changing reasons as proof of discriminatory bias.  That decision found that a jury can infer discriminatory bias if the employer’s proffered reason for a discharge is shown to be false.  The jury is not required to draw such a conclusion, but it may draw such a conclusion.  So, the decision in Jones should not be surprising.  But, too many courts still do not follow the Reeves reasoning and give enough weight to shifting reasons.  

It helps that the employer made the statement showing age bias.  But, proof of falsity should be enough.  People do not discriminate and then admit it.  They almost always deny any discriminatory bias.