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  • Writer's picturePavan Khoobchandani

Don't Be Shifty When Telling Employees They Are Being Terminated

Updated: Mar 2, 2023

A recent decision by the United States Court of Appeals for the Fourth Circuit offers, to those of us that revel in legal minutiae, a fun read.

In Gomez v. Haystax Technology, Inc. the court addresses civil procedure, discovery deadlines, government contracting, motions in limine, lack of candor to the court by an attorney, and the infamous McDonnell Douglas burden-shifting framework, which is a legal standard used in employment discrimination cases.

If the previous sentence excites you, I highly recommend you go home, pour yourself a glass of wine, and curl up with the 34 page opinion.

To the rest of you, I offer my normal-person take on one employment aspect of the case:

A common problem faced by employers is discrimination litigation arises when an employer tells an employee that he/she is being terminated for a certain reason, and then asserts a different reason during litigation.

This happens all the time.

Many times, this happens because an employer is not being particularly honest at the time of termination, wants to cushion the termination, wants to try to give the employee a soft landing, or wants to spare the employee's feelings. This can result in a real, valid reason for termination to not be articulated at the time of termination. But then, when a lawsuit is filed, the employer lays out the real reasons.

This can be a problem because courts, facing "shifting justifications" for an employee's termination, may find that an employer is not entitled to summary judgment, and allow the case to proceed to trial. This is the case even where the employer had a valid justification for the termination. While the employer may ultimately prevail, the "shifting justifications" prevent it from getting out of the lawsuit early on. And, longer lawsuits mean more $$$$$.

The takeaway: The reasons a particular employee is being terminated is often multi-layered and complex. For example, there could be multiple reasons for a termination such as a decrease in work or loss of contract coupled with performance issues. Employers should be honest and articulate all the reasons to the employee at the time of termination, and be consistent with the stated reasons. Doing so could save a lot of money down the road.


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