Disclaimer: These response templates are for informational purposes only. Consult with an employment attorney for advice specific to your situation.

Respond to Employer Defenses

Counter common employer excuses and defenses in discrimination cases with evidence-based responses

Common Employer Defenses & How to Counter Them

"We terminated you for performance issues"
The most common employer defense - claiming legitimate business reasons
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Your Response Strategy
Challenge the pretext by showing: (1) your performance was satisfactory before you engaged in protected activity or your protected class became known; (2) similarly situated employees outside your protected class with similar or worse performance were treated more favorably; (3) the performance issues cited are false, exaggerated, or inconsistently applied; (4) the timing of the performance criticism correlates with discrimination.
Legal Standard - Pretext
"A plaintiff may establish pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." - Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)
Evidence to Gather
  • Performance reviews before and after discrimination began
  • Emails praising your work
  • Comparators - employees outside your class with similar issues who weren't terminated
  • Timeline showing sudden performance criticism after complaint/protected activity
  • Inconsistencies in the employer's stated reasons
"It was a legitimate business decision / restructuring"
Employer claims economic or organizational reasons
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Your Response Strategy
Scrutinize whether the "business decision" was applied fairly across protected classes. Show: (1) employees in your protected class were disproportionately affected; (2) the position was filled by someone outside your protected class shortly after; (3) the "restructuring" was pretextual - others performed your duties; (4) similarly situated employees outside your class were retained.
Legal Standard - Disparate Impact
Even facially neutral policies can be discriminatory if they disproportionately affect a protected class without business necessity. - Griggs v. Duke Power Co., 401 U.S. 424 (1971)
Evidence to Gather
  • Demographics of those laid off vs. retained
  • Job postings for similar positions after your termination
  • Who took over your job duties
  • Whether your position was "eliminated" but recreated under different title
  • Company financials showing if restructuring was genuine
"The decision-maker didn't know about your protected status"
Employer claims ignorance of your protected characteristic
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Your Response Strategy
Show that: (1) the protected characteristic was obvious or known (race, gender, visible disability, pregnancy); (2) you disclosed the characteristic (religious accommodation request, disability accommodation, medical leave); (3) even if the formal decision-maker claims ignorance, others who influenced the decision knew; (4) "cat's paw" theory - biased subordinate influenced unbiased decision-maker.
Legal Standard - Cat's Paw
"If a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable." - Staub v. Proctor Hospital, 562 U.S. 411 (2011)
Evidence to Gather
  • Accommodation requests or HR communications about your status
  • Who was involved in the termination decision process
  • Communications between supervisors and decision-makers
  • Whether biased supervisor provided input on your termination
"You never reported the discrimination internally"
Employer argues you failed to use complaint procedures
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Your Response Strategy
Under FEHA, you are NOT required to exhaust internal remedies before filing a complaint. However, if you did complain internally, emphasize this. If you didn't, explain why: (1) you feared retaliation; (2) the harasser WAS the person you'd report to; (3) you witnessed others being retaliated against; (4) the policy was unclear or inaccessible; (5) you did complain but it wasn't documented.
California Law
California does not require exhaustion of internal remedies. An employee may file directly with CRD without first complaining to the employer. The failure to complain internally may be relevant to a harassment claim's "severe or pervasive" element but does not bar the claim.
Evidence to Gather
  • Any informal complaints you made (verbal, email, text)
  • Evidence of fear of retaliation (examples of others retaliated against)
  • Problems with the complaint procedure (unclear, harasser involved)
  • Any documentation of internal complaints, even informal
"The same person who hired you also fired you"
Same-actor inference defense
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Your Response Strategy
The "same actor" inference is weak and can be overcome by showing: (1) circumstances changed (you became pregnant, requested accommodation, got older, complained); (2) the decision-maker's attitude changed; (3) discriminatory comments were made; (4) strong direct evidence of bias. California courts give this inference limited weight.
California Standard
"The same-actor inference is simply that - an inference. It is not conclusive and can be rebutted by other evidence of discriminatory motive." - Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009)
Evidence to Gather
  • What changed between hiring and firing (pregnancy, age, disability, complaint)
  • Discriminatory comments made by the same person
  • Change in how you were treated over time
  • Pattern of the same actor discriminating against others
"The conduct wasn't severe or pervasive enough"
For harassment claims - employer minimizes the conduct
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Your Response Strategy
Document the totality of circumstances. Show: (1) frequency of discriminatory conduct; (2) severity of each incident; (3) whether conduct was physically threatening or humiliating; (4) whether it unreasonably interfered with your work; (5) cumulative effect of all incidents together. One severe incident OR multiple less severe incidents can meet the standard.
California Standard - Broader Than Federal
California uses a "totality of the circumstances" test and explicitly prohibits harassment. "A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." - Gov. Code 12923(b)
Evidence to Gather
  • Detailed log of every incident with dates, witnesses, impact
  • How conduct affected your work performance
  • Medical/therapy records showing emotional impact
  • Comparator evidence - how others were treated
  • Any physical aspects of harassment (blocking, touching, proximity)
"California is at-will, we can fire anyone for any reason"
Employer misrepresents at-will doctrine
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Your Response Strategy
This is a misstatement of law. While California is at-will, employers CANNOT fire employees for ILLEGAL reasons - including discrimination based on protected characteristics. At-will employment has significant exceptions: (1) discrimination under FEHA; (2) retaliation for protected activity; (3) violation of public policy; (4) breach of implied contract.
Legal Reality
"An employer may terminate an at-will employee for no reason, or for an arbitrary or irrational reason. But there is no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy." - Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980)
Key Points to Make
  • At-will does not permit discriminatory terminations
  • FEHA expressly prohibits discrimination in employment
  • The question is not whether they COULD fire you, but WHY they did
  • Employer must articulate legitimate, non-discriminatory reason
"Your claim is time-barred"
Employer argues statute of limitations has run
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Your Response Strategy
Know your deadlines and exceptions: (1) CRD complaint: 3 years from most recent discriminatory act; (2) EEOC: 300 days (with state cross-filing); (3) Continuing violation doctrine extends deadline if discrimination was ongoing; (4) Discovery rule may toll if you couldn't have known of discrimination; (5) Equitable tolling may apply in certain circumstances.
California Deadlines
CRD Complaint: 3 years from the date of the alleged unlawful practice (extended from 1 year effective January 1, 2020). The "continuing violation" doctrine may allow claims for earlier acts if they are sufficiently related to acts within the limitations period.
To Preserve Your Claims
  • File with CRD as soon as possible - don't wait
  • Document most recent discriminatory act carefully
  • Show pattern of continuing discrimination if applicable
  • Argue equitable tolling if employer concealed discrimination
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