4 Common Ways of Demonstrating Pretext

What is pretext and why is it important?

What is pretext? The Merriam-Webster Dictionary defines pretext as "a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs." In the San Jose employment law context, pretext is essentially a false reason given for an adverse employment action that covers up the employers true motives. For example, an employer might tell you that you are being fired because of budget cuts, but in fact you are being fired because you recently asked for a disability accommodation. How do you, as the plaintiff, essentially prove your employer's discriminatory state of mind? 

Under the  framework articulated by the United States Supreme Court case McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), after the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant-employer to articulate a "legitimate, nondiscriminatory reason" for the adverse employment action. The plaintiff is then afforded the opportunity to show that the articulated reason was not the true reason for the adverse employment action, i.e. that the reason is pretextual. By doing so, the plaintiff may be able to show that the defendant-employer did in fact act with discriminatory motive.

As you might imagine, this type of evidence is critical to a successful lawsuit, as employers do not typically state their improper motivation(s) explicitly. Employers will almost always provide a nondiscriminatory reason for the adverse employment action, and thus the plaintiff must attempt to demonstrate that the reason given is unworthy of credence or that unlawful discrimination more likely motivated the employer.

While the ways to prove pretext are often intertwined and there is no single or best way to prove pretext, below are 4 common ways to do so.  

1. False Reason/Implausible Business Justification

Although employers are given wide berth to act irrationally, demonstrating that the "legitimate, nondiscriminatory reason" for the adverse employment action is false/implausible/incoherent may nonetheless allow the reasonable fact finder to infer that the employer did in fact discriminate. Dep't of Fair Employment & Housing v. Lucent Techs, Inc., 642 F.3d 728, 746 (9th Cir. 2011). In other words, if you can show that the reason the employer provides for your termination is false or implausible, the factfinder may be able to make the inference that you were discriminated against.  (After, of course, you've already established your prima facie case of discrimination.)  

As one can imagine, there are near countless ways to demonstrate pretext in this fashion.  Here are some examples to illustrate the point:

  • Max is denied a raise, purportedly because of budget constraints. In actuality there were no budgetary issues and other employees not in Max's protected class were given raises.
  • Jane was told she was being terminated because of "performance issues." However, all of Jane's past monthly performance reviews were stellar and there was no mention of any issues or areas of improvement in any of her reviews.
  • John was told he was being laid off because of over-staffing. But John and other coworkers in his department were working nearly 60 hours a week and the employer was in the process of hiring numerous new employees to help with the workload.

Essentially, if the employer's reason for the adverse employment action leaves you thinking, "That makes no sense and can't be true!" then it is likely evidence of pretext.

2. Shifting Reasons

Related to the above, if an employer shifts or changes its reasons for subjecting an employee to an adverse employment action over the course of litigation, there may be an inference of pretext. Shifting reasons, especially those that contradict and/or develop over the course of litigation to combat the plaintiff's theory of the case hurt the employer's credibility and lead to an inference of discrimination. For example, your termination letter might state that the reason for your termination is "excessive absences" (let's assume the absences were based on your disability) but during litigation the employer claims that you were actually fired for stealing. Fundamentally different justifications for an adverse employment action give rise to genuine issues of fact since they suggest the possibility that the proffered "legitimate nondiscriminatory reason" was not the true reason at all. Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993).

There are many different avenues to discover shifting reasons for an adverse employment action: in particular, your counsel should take special note of employer responses to California Employment Development Department and California Department of Fair Employment and Housing inquiries.  These should always be compared to the employer's written discovery responses and deposition testimony for any inconsistencies.  

3. Comparative Evidence

A plaintiff can also raise a triable issue of pretext through comparative evidence that similarly situated employees not in the plaintiff's protected class were treated more favorably. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). This type of evidence (if you can get it) is strong as it comports with the general public understanding of what discrimination entails--being treated poorly compared to others because of race, sex, religion, age, and other protected classes. 

A classic example of comparative evidence would be a situation where the plaintiff had been terminated for a first-time policy violation that other employees (similarly situated & and not in the same protected class) routinely violate. This, of course, lends an inference that the policy violation wasn't actually the reason for termination. This type of evidence can be the difference maker in a lawsuit and your counsel should always make an attempt to obtain comparative evidence if possible.

4. Timing

Timing is another fairly commonsense way to prove retaliation claims: proximity in time between a protected activity and the adverse employment action can allow a factfinder to infer retaliation. Dawson v. Entek International, 630 F.3d 928 (9th Cir. 2011). The shorter the time frame, the stronger the evidence of pretext. In Dawson, for example, the Court ruled that the two day time frame between the plaintiff's protected complaint and his termination was sufficient to establish pretext and preclude summary judgment. It is important to note, however, that Courts have found pretext even when weeks had elapsed between the protected activity and the adverse employment action. 


Successfully demonstrating pretext can be extremely complicated and fact intensive, but it is only part of the overall equation. In order to successfully navigate a lawsuit, you'll want an experienced and dedicated advocate by your side each step of the way. If you believe you have been a victim of discrimination or retaliation, please contact us today for a free consultation.