Signs Your Employer is Using Pretext to Set You Up

Although there are many illegal reasons to fire or punish an employee, there are also plenty of perfectly legal reasons. One of those reasons is simply poor job performance, not doing what your superior says, violating company rules, or any of a number of things that common sense would tell you could get you fired.

Knowing that, a lot of employers, who really want to fire you for illegal reasons (like discrimination, or retaliation against you for whistleblowing), will manufacture things that you did wrong. They use these manufactured things to justify your firing (or other adverse employment action), and make it seem like they are actually firing you for legal reasons.

This is called pretext. But how do you know when you are being set up for pretext? How do you know when your employer is trying to manufacture negative things about you that aren’t genuine, just so that they can punish you in some way at work?

Inconsistent Discipline

Inconsistency is a major hallmark of pretext. Inconsistency is one of the leading ways that we can tell when an employer is just manufacturing negative things, to justify getting rid of you.

That inconsistency can come in a number of ways.

It can include inconsistency between employees. For example, one employee takes a longer bathroom break and nobody cares; you take an extended bathroom break, and you get disciplined and written up by your boss.

Inconsistency even just in punishments put on you can show pretext. Policies that really matter to employers are enforced consistently. When you are punished for being 5 minutes late today, then nobody cares when you do the same thing tomorrow, then they care again and reprimand you when you’re late just a few days later—that is another sign that you may be a victim of pretext.

Is it in a Manual or Handbook?

Often, employers will discipline you for doing or not doing things that are in the employee manual, or employee handbook. Yes, it’s true that many handbooks don’t have absolutely every company policy in them, and employers are allowed to discipline you for things that aren’t specifically in employee handbooks.

Still, when you are punished for something that is not listed in a manual, or a policy or procedure or manual, it can often be a sign that an employer is just making things up, in order to make your life difficult.

Putting Things in Your File

In normal work life, not everything that you do wrong gets written up, and put into your employee file. But when your employer is trying to set you up for pretextual reasons, they often will be quite obsessed with writing things in your employee file.

Specific Wrongs

Specificity matters also. Employers who are just “setting you up,” will often use vague and oblique terms. They will say you were “subordinate,” or “rude.” Real discipline usually is more specific—it will detail exactly what you did wrong.

When you are disciplined for some general term that can’t really be proven or refuted, it’s a sign that your employer may be using pretext.

Pretext is a common defense in employment discrimination cases. We can help defeat it. Contact the San Jose employment lawyers at the Costanzo Law Firm today.

Sources:

forbes.com/sites/ericbachman/2019/07/02/when-is-an-employers-reason-for-firing-you-actually-a-pretext-for-age-discrimination/

humanrights.alaska.gov/employee-reorganization-was-a-pretext-for-disability-discrimination/