Construction Law: Employee Termination

Demystifying the Discrimination in Employment Legal Process Part Two

by Gabriel Pinilla, Cotney Construction Law










(Editor’s Note: Gabriel Pinilla is the managing partner of Cotney Construction Law’s Denver, Colorado, office. He is a seasoned, results-oriented business and construction law and litigation attorney. Pinilla’s practice encompasses state and federal court litigation from pre-trial through the appeals process, as well as serving clients with negotiation and transactional needs. For more information, go to


While business judgment, not legal analysis, must be the primary driver in decisions regarding personnel management, knowledge of basic employment law matters and incorporating an approach that factors in the legal process is essential to managing risk in the context of employee termination decisions.

At the federal level and for most state systems, employment discrimination laws require that enforcement begin first by way of a mandatory administrative process. An employee must file a complaint with the Equal Employment Opportunity Commission (EEOC) at the federal level and/or with the parallel state agency. Claimants can choose to file with one of those agencies or dual file. The EEOC has a 180-day time-fuse, but that extends to 300 days from the date of the alleged discriminatory act if there is also an applicable state law. That gives employees between six months, or potentially up to 300 days or more depending on the parameters of the state law system, to pursue a claim administratively.

Claims filed in these administrative agencies often are not actually resolved within the administrative process, though employers are entitled to, and should, respond to any charge or complaint filed. Usually, after a six-month period, the agency issues a non-ruling on the issue. Once that action is taken, the employee-claimant has the right to file suit. An employee-claimant is prohibited from filing suit in court until that administrative process is exhausted, and if those administrative remedies are not exhausted, any such discrimination claim is barred.

The term circumstantial evidence is commonly thought of negatively or as lacking legitimacy. However, in the employment discrimination context, that is routinely the type of evidence relied upon to prove a claim. Courts acknowledge that there is rarely direct evidence of discrimination since most people who harbor discriminatory feelings/perspectives keep them hidden. Proving discrimination in court is a process of shifting the burden of proof. The claimant must first show that there is some basis for discrimination. This is not a heavy burden, as they merely have to establish that the employee is in a protected class and there was an adverse employment action.

The burden then shifts to the employer to provide a non-discriminatory reason for the adverse employment action. Once the employer has met that requirement, the burden then shifts back to the employee to prove that the proposed non-discriminatory reason is a pretext, or just a cover for the real reason, which the employee will have to prove is actually discrimination.

Circumstantial evidence is sometimes the only form of evidence that can be relied upon to attempt to establish pretext. One way this is done is by showing a pattern that suggests a discriminatory preference. For example, firing or demoting older workers more so than younger workers could weigh against an employer and bolster a claim of discrimination brought by an individual employee. The same goes for any pattern in wage differences between men and women.

To rebut this type of evidence, good documentation and tracking of HR and performance matters are critical. If unsatisfactory employee performance or failure to adhere to policies is the reason for an employee termination, be sure these instances are properly recorded and addressed. Employers must also be fair and consistent in applying the same standards across the board to all employees. If not, that too can be used to suggest unfair or discriminatory treatment. Implementing policies and procedures to draw upon is essential to this process. Build in anti-discrimination policies that adhere to applicable law into that program. Utilize an employee manual and a system to monitor and enforce compliance with those policy initiatives, and follow the procedures put in place consistently.

Regrettably, risk management in HR must factor in the avoidance of discrimination or similar employee lawsuits. This doesn’t mean roofing companies should be afraid to make necessary decisions, but approaching employee management issues thoughtfully and consistently with the applicable law and process in mind will serve your business well. Working with a seasoned attorney that understands your business and industry can help you avoid employee lawsuits or, when they cannot be avoided, help you position the company for the best possible outcome. Following through on the protocols and the system you and your attorney put in place will then help you defend any case brought against your company.