Will the tail wag the dog? Pretext vs. pretext plus

How does an employee prove discrimination to get to a jury? The Texas Supreme Court has agreed to answer this question, and they’ll make a choice between pretext alone versus pretext plus something more. Read on.

Big picture

An employer offers seemingly valid reasons for taking an adverse employment action. But that isn’t the end of the analysis. An employee is entitled to show the employer’s reason is a pretext—that is, a false front for unlawful discrimination.

But to get to a jury, is it enough to cast doubt on the reasons, or must the employee show some evidence of unlawful discrimination, as well? This is what the Texas Supreme Court will be deciding in interpreting the Texas Labor Code.

Facts

Loretta Flores works for the Texas Health Sciences Center in El Paso and applied internally for a new job as the chief of staff to its president. The position required an advanced degree plus 10 years of progressive experience in a complex organization. She is an incumbent employee, but a younger applicant was selected, so she sued for age discrimination.