- The U.S. Supreme Court on Monday declined to consider a gender bias lawsuit filed by a former employee of Proctor & Gamble that was dismissed by a district court, a ruling affirmed by the 11th U.S. Circuit Court of Appeals (Gladden v. Proctor & Gamble Distributing No. 21-13535 (11th Cir. July 27, 2022)). The employee had submitted a petition for a writ of certiorari in January.
- The employee was fired for allegedly violating P&G’s policies on vendor contracts and working with a fired vendor to “harass and intimidate P&G employees,” the circuit court said. The circuit court said the employee didn’t show that the company’s reasons for firing her were pretextual — that the reasons for her firing were false or tied to discrimination.
- In her petition to the high court, the employee argued that she was denied due process because of the 11th Circuit’s “overly simplistic pretext analysis,” alleging that multiple factors can be the cause for termination. P&G declined to comment. A lawyer for the employee couldn’t immediately be reached for comment.
Under Title VII of the Civil Rights Act of 1964, an employee can’t be discriminated on based on race, color, religion, sex or national origin. The 11th Circuit court ruled that the P&G employee never made a case that a male worker was not fired for violating the same policies.
Proving pretext often plays a role in discrimination and retaliation cases. In December, for example, the 8th Circuit reaffirmed a lower court’s ruling that an employee was fired for a “plethora of performance deficiencies” rather than as retaliation for medical-related absences. The employee was unable to prove that the reasons listed for her termination were a pretext for retaliation.
Likewise, the 10th U.S. Circuit Court of Appeals ruled in December that a White nurse was not fired from an assisted living facility in Kansas because of racial bias but rather because she allegedly neglected her job responsibilities and acted unprofessionally.
Over the years, compliance experts have emphasized the importance of documentation in carrying out HR processes. Should a claim arise, experts have noted, employers can point to quality documentation to ward off accusations of discriminatory pretext. In one 2019 case, for example, an employer defeated a discrimination claim when it presented memos that showed it intended to let the employee go as part of a broader restructuring plan. The memos predated the incident the former employee used as evidence for her claim.