Dallas Employment Lawyer Blog
Dallas Employment Trial Lawyer Austin Campbell
Summary: This article discusses why it is strategically important for employees, when pursuing legal claims against their employer, to simplify their case as much as possible.
Many employees who come to us and explain that they believe their employer discriminated or retaliated against them state that they think there are multiple illegal reasons for their employer’s actions. For instance, someone might tell me they believe their employer fired them because of their age, because they have a disability, because they took FMLA leave, and because they previously reported the discrimination because of age.
At the end of the day, in almost any employment case the burden of proof is on the employee asserting legal claims against their employer. Part of that usually means the employee must prove that they were fired because of an illegal reason or reasons. Typically that burden takes the form of what is called “but for” causation—but for the person having a disability, they would not have been fired, for instance.
First of all, it is not the point of this article to say there is anything wrong or illogical about believing that an employer fired you for multiple illegal reasons. The U.S. Supreme Court has made it abundantly clear that “[o]ften, events have multiple but-for causes.” Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1739 (2020) (emphasis in original). Making an analogy, the Court noted, “[s]o, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.” Id. (emphasis in original). In the employment context, is intuitively easy to understand that a prejudiced employer who goes after an employee for one illegal reason might also be motivated by another illegal reason.
No, the point of this article is to emphasize that from a strategic point of view, it can sometimes be better for an employee not to pursue some claims even if they are convinced they are all true. Many times employees come to us and ask us to pursue four, five, six different claims, reasoning that we can just try everything and “see what sticks.” But that “kitchen sink” approach isn’t always best, regardless of whether those four, five, six different things actually are the employer’s motives.
Because the burden of proof is on the employee, it is important that the employee be able to tell a “story” (or perhaps “narrative”) that will ultimately show a judge or jury that they have in fact met their burden of proof. A “story” that a judge or jury has trouble following does not do that. And a “story” that seems far-fetched to an outside observer doesn’t do that. Thus, it can often make sense to focus just on the clearest, simplest, most compelling claims with the best evidence, even if it means dropping some claims by the wayside. For instance, if you believe your employer fired you because of age and race, and the supervisor never mentioned your age but did use racial slurs, it might be better to focus on just the race claim. That tells a simpler and more convincing “story” that doesn’t risk leaving a jury wondering, wait so what is this really about? Age? Race? Something else? Employers often deliberately try to muddy the waters by claiming every decision is “multifaceted” and “nuanced” and about ten different things over a five-year period. Generally, the more confused a jury is about what happened in a case and what the employer’s real motive is, the less likely they are to rule in favor of an employee. Then, pursuing a bunch of claims—even if every single of them is absolutely true—might just be shooting yourself in the foot.
That is not to say every case needs to be just one claim, but you and/or your attorney should consider whether it makes sense to pursue multiple claims in the context of your specific case. Is there something that inherently links the different claims together? For instance, a claim of disability discrimination and FMLA retaliation might be linked if the reason you needed to take the FMLA leave (that your employer later fired you for taking) was because your employer first refused to provide reasonable disability accommodations. Or maybe an employer fired you because of your sex and because you reported sexual harassment. In those situations, both claims tell a unified story. Even when claims are not logically linked together like that, if the evidence is clear enough it may still make sense to bring very different claims together.
If you believe your employer fired you for an illegal reason or reasons, you should schedule a consultation with an employment attorney like those at Rob Wiley, P.C.