Getting Fired for Pretextual Reasons
10:15PM Oct 6, 2020
Hello, everybody! I am Meredith Holley. If you don't know me, I'm a lawyer, and life coach, and founder of Eris Conflict Resolution, where we help employees stop toxic work environments without leaving or losing their jobs.
And, I am joined by Rebecca, who is one of the trainers in our office. And, she also has her own amazing coaching practice. Do you want to share with them?
Yeah. Um, so I help rape survivors have a happier and stronger life than before they were raped.
And with Eris, Rebecca does our IMPACT trainings and helps employees, really, with the individualized plans that we have for their safety.
So, today, we want to talk about how to avoid getting fired for a pretextual reason. And what that means is: if you are being targeted with sexual harassment, if you're being targeted as a woman, if you're being targeted because of your race, because of a disability, like a medical condition, if your employer's targeting you and you know they're targeting you...
And, then, what we're seeing now is kind of a rise in layoffs that are targeted at people with protected characteristics. But, the employer just says, "well, COVID" or "well, you know, finances are rough right now." And it's, like, clearly not true.
And so, we want to talk because I think we are in a precarious time in the history of the United States...
Yeah. And people's jobs are at risk more than we've seen in the past. And so, um, anyway... Rebecca, kind of what what were you seeing? Because you kind of had this idea that you were seeing kind of a rise in this. Do you want to talk a little bit about what you were seeing?
Yeah, just, um, I have a lot of people... I was in HR for 20 years, so I have a lot of people reach out to me and be like, "hey, I just got fired. But I know, it wasn't because of this. And, it was because of this," right? Or, "I just got laid off. And, I know that they aren't laying me off for this. They're laying me off for this," right? And it's like, "okay, well... some of those are, like actually, are illegal. And some of them, not so much," you know?
But, it's like hard to... so, your employer will say you were late on Tuesday, so you're part of the layoffs. But, really, you're the only woman in the department or the only person of color in the department and the only person getting laid off. And so, you're like, "well, Joe was late on Tuesday."
Yeah. Like, Joe (inaudible)... somebody last week, and he was late. But I'm a lady, so...
Yeah. So, I guess I get laid off.
Yeah. And so, what we see... I mean, what I see when people come to us, and they don't come to us ahead of time, that makes me like, "I have to go take a nap" is that people don't assert their protections. They're afraid that if they talk about the fact that they're the only woman, that they're the only person with PTSD, that they're the only person in the office that's a person of color, they're afraid that if they talk about it, they put themselves at risk. And, really, the opposite is true.
And, we also have this other belief that if we talk about that fact, it's like we're playing the race card or we're whiners or...
Or, we will be a target.
Yeah, right. Like, people didn't realize it before.
But, now they know.
Yeah, exactly. And, I know from my experience in HR, if you know someone has like a pretextual or protected reason, like I was much more cautious about anything to do with that.
Well, and you can also resolve any treatment, that people... resolve the the fact that somebody is being treated differently.
So, we just had an example of this happen where one of our clients is pregnant, she was fired from one job because she's pregnant and then she is working at a different job and she was really afraid to tell them that she's pregnant. But, she has a very high-risk pregnancy and her doctor is restricting her from some of her work duties because it's a pretty disabling pregnancy. And, she was terrified to tell her supervisor that she's pregnant because she was sure she was gonna get fired. And she... and I helped her. I wrote up what she needed to say, to make sure she was asserting her protections. She gave it to her supervisor and told her supervisor, "I really want to work with you. I don't want to lose this job." And, her supervisor said, "oh well, we would never fire you now because you've asserted your protection," right? Because they know now and it doesn't mean that you have to say, "oh, I deserve more than other people. I'm a special snowflake. I deserve advantages that other people don't have." It just means that you say, "here's what I need to be accommodated."
Or here, like with sexual harassment, the main way that we see it is that people are afraid that if they talk about the behavior of their harasser, then they will be targeted by the employer. And, really, if you can say, "I think that my boss is treating me differently because I'm a woman, you have established evidence--and do it in writing--you've established evidence for a legal claim. And, you really have more protection, and you're less likely to get fired.
And, if you do get fired, you at least have some recourse. And in that kind of environment, if somebody fires you for asserting your protection, you're probably going to get fired anyway, is my experience.
Yeah, right. Like, there's no... I don't want to say there's no... yes.
I mean, some work environments... To me, it's not a good idea for an employer to fire... But, okay. So, the way that I see this go wrong is an employer disciplines somebody, for an actual problem, and the employer says, "you can't be late on Tuesdays. Like, you're late every Tuesday. There's no good reason for it." Or like, there was somebody who was always late on Monday. And, the rumor was that he just was getting wasted on Sunday night, because he didn't want to come into work. So, he's always like two hours late to work on Monday. So your emploer says, you know, legit, "don't be two hours late on Monday." And, then you say, "well, I'm a woman. I'm the only woman."
Then, that's not how you do that.
No, no. I saw that so much in Human Resources, where you were going to like, you want to discipline somebody for something... not want to... but so, you're going to discipline somebody for something. And then, they they like slide in this, "yeah, but I have depression" or whatever. And you're like, "ah, ah, ah, what are we going to do now?"
Yeah. And, a lot of times, it doesn't work out great for legal cases. If you assert the thing after you've been... we just had somebody, who we actually fired as a client, who was originally... when he was talking to us, he said he asserted his protections to take medical leave under COVID laws. And then, he was fired the next day. But, really, the opposite happened. He was fired, and then the next day, he tried to assert his protections. And, it doesn't work that way. Like, asserting protections after the fact.
Maybe, your employer needs to accommodate you for the time you're still working. For example, if you get fired... if you get given a month notice for your job/end of your job, and then you need a sick day, you still get a sick day. You've still been fired, but it doesn't like fix the firing, retroactively, right?
But, if you are honest... I mean, part of it to me is about being honest about what you're seeing in the workplace. And, if you are seeing that women are being treated differently than men in the workplace, saying it ahead of time does give you protections. If you genuinely are seeing that, if you're seeing people of your race being treated differently, saying it ahead of time does give you protections. And, give your employer the opportunity to work with you or to show that they're a discriminatory employer and probably would fire you anyway.
Yeah, yeah. I had an experience myself when I was in the Air National Guard. I was a sheetmetal technician. I was the first female that the flight had in like 20 years.
And it was, and it's interesting because there were definitely times I was treated differently because I was a woman. And then, times I was treated just like everybody else, right? But, I had to like vocalize, like you guys are doing this just because I'm a woman. The guys don't get treated like this. Like, we had other women come into the flight, and we all had to share one locker. And, I was like, you guys have a whole locker room, right?
We need individual lockers, right? And it's, I can see where it's uncomfortable if maybe you're not used to asserting yourself this way. But then, it's also uncomfortable to get fired and try to backpedal.
Yeah, yeah. And it doesn't work. And, I mean, we have a client right now who's really like, put off raising it. I mean, she did raise issues along the way and she was ignored. And she raised issues, and she was ignored. But she also sort of did not. She tried to sort of play the game.
I feel like. And now, it's gotten to a point where she is just, her life is like pretty devastated right now. And, I don't think that she's backpedaling, exactly. But she could have been a little stronger in the way that she created a safe environment for people and she's kind of suffering some consequences from that. And, she really is, like, probably going to have to go on medical leave because she's having such severe symptoms. So, do it ahead of time.
Well, and I was... and then, with that client, we were talking about it... I'm like, a lot of times, it's not like a movie montage where you go in and you're like, "oh, I'm gonna work real hard. Everybody's gonna earn, I'm going to earn my respect. It's like, "no, no, don't... no,no. Just go talk to your manager. Go talk to your boss, go talk to HR."
And, when they don't listen to you go up the chain.
Go up the chain.
And, do it in writing.
Yeah. And do it honestly. Don't... you don't have to... don't exaggerate if it's not discriminatory and you actually got something wrong. Own your mistakes, right?
Because, you can have both and, right? You get to make mistakes, and you could be in a discriminatory environment.
Yes, exactly. They don't negate each other, right?
Yeah. Calling it out protects you from letting that pretextual reason for getting fired take over.
Anyway, so thanks for talking to me, Rebecca! Anybody who has any questions about that or is concerned that they're being targeted, you can always reach out to us at erisresolution.com, or send us an email, give us a call at 458-221-2671 and we would love to help if we can.