Tell the truth. Be consistent.

Those are common refrains among lawyers to clients. Why? Because inconsistencies are a crucial way for opposing parties to establish their case.

In employment cases, an employee may not have "direct" evidence of discrimination, but courts allow an employee to piece together evidence based on circumstances, including evidence that pokes holes at the employer’s business reasons for a decision.

The Second Circuit provided a prime example of this practice in a case released Friday entitled Weiss v. JPMorgan Chase & Co .  In the case, the Second Circuit discussed how finding fault with the employer’s justification is enough to at least send the case to a jury to decide.

In Weiss, the evidence presented by the employee called into question the credibility of JPMorgan’s main explanation for his termination, at least in part. The employee then argued that his termination occurred under the following abrupt and unusual circumstances suggesting discrimination, including the promotion of a younger employee without supervisory experience in the industry. The Second Circuit found that the disparity in qualifications may point to discrimination.

The Second Circuit here was also troubled by shifting reasons proffered by the employer. Particularly troubling to the Second Circuit was a comment made by a JPMorgan human resources representative that the company "always advocate[s] giving true reasons" why employees are fired. If that’s the case, the court seemed to inquire, why wasn’t it done here?

What’s the take away for employers? Be consistent in the reasons why you terminate an employee and follow your policies and procedures with consistency as well. 

For a more detailed analysis, see this post by the Wait a Second blog.