Maxwell C Livingston
Claim for Wrongful Termination in the State of Wisconsin Based on Race
Wisconsin is an at-will state, which means that an employer can terminate an employee for a non-discriminatory reason. However, if an employee is terminated because of his race, that is not permitted.
However, it is not always so easy to prove that the reason for termination was discriminatory. That is, in such cases in which there is not direct evidence that the motive for termination was discriminatory on the basis of race.
Since the 1970s, the test to proving wrongful termination on the basis of race in “indirect evidence” cases is called the prima facie test. It is a four-part test requiring that the employee (a) is in a protected class on the basis of race (any race will qualify), (b) having suffered an adverse action (termination qualifies), (c) having performed satisfactorily (a low bar that is satisfied by a term of employment of a few years or more or a history of positive reviews), and (d) having been treated worse than someone of a different race.
Part (d) of the prima facie case is the one part of the test that is most difficult to satisfy. This is called the “comparator test”. Under the comparator test, someone of a similar position within the same company as Complainant kept his or her job for conduct equally bad or worse than Complainant’s conduct when Complainant was terminated.
An example of this is that person A, a black, male driver gets a ticket for running through a stop and is immediately terminated. And, he discovers that person B, a white, male driver was only suspended for running through a stop only 6 months before person A was terminated. If they share the same supervisor, part (d) of the prima facie is likely met. Since parts (a) and (b) are certainly satisfied, it would certainly come down only to part (c).
Even once the prima facie test is met though, the Respondent has the right to defend by showing that the termination was for a “legitimate non-discriminatory reason.” The burden then shifts back to Complainant to show “pretext”, meaning that the reason offered is false. This is customarily shown through “circumstantial” evidence that undercuts Respondents proffered legitimate non-discriminatory reason.