Many discrimination cases are focused on whether the employer’s supposed reasons for termination are sincere.  Few employers explain that they have fired so-and-so because of the employee’s race, color or whatever.  So, very often, cases are all about whether the employer’s articulated reasons for a firing or demotion are sincere.  And, caselaw or precedent holds that evidence of the employer’s false reasons support a finding of discrimination. 

So, what is the employer’s reason?  Must the employer’s reason include ample detail?  Not according to a recent Fifth Circuit decision.  In Jackson v. Watkins, et al, the federal Fifth Circuit found that conclusory reasons are enough.  As Mike Maslanka at Work Matters blog points out, that is surprising.  See Work Matters blog post.   Since, as happened in the Jackson case, an employer can offer very little which the employee cannot rebut.  In Jackson, a long time prosecutor for the Dallas County DA’s office was fired.  The new District Attorney said nothing more than that he had had "negative" experiences with the prosecutor.  No examples.  No incidents.  That was it.  And, Mr. Jackson did not offer any rebuttal to this reason.  Mr. Jackson’s lawyer simply argued that they did not have to present evidence rebutting that reason because it was so general.  The employee relied on evidence that Mr. Watkins fired four white top prosecutors and replaced them all with black prosecutors.  As the court suggested, statistical evidence is rarely persuasive and is not helpful without better analysis.  

Too, Plaintiff Jackson relied on his good job evaluations and good work record over the years.  But, as the court explained, none of this responds to the DA’s claim to have had personal negative interactions with the employee. 

It is difficult for any employee to rebut that sort of statement.  But, the Fifth Circuit said that is good enough to amount to a legitimate non-discriminatory reason.  Therefore, the employee must rebut that, or the employee will lose.  As Mike points out, an employee who offers a conclusory basis for a claim of discrimination will get his claim tossed out of court.  But, the employer who does the same will win – at least according to this decision. 

But, employer do have incentive for providing detailed explanations in more frequent situations.  Discrimination lawsuits are pretty rare.  But, claims for unemployment are common.  An employer will not win a claim for unemployment benefits with conclusory statements about any personnel action.  Indeed, many TWC hearing officers will expect to hear about how the employer notified the employee s/he had a problem and how the employer gave the employee time to improve.  

So, from the employer’s perspective, its darned if you do, darned if you don’t…..