Firing employees is one of the hardest and most emotionally charged tasks for any business owner or manager. Unlike Donald Trump on The Apprentice, most employers dread saying "you're fired," even to their worst performers. As a result, businesses often retain nonproductive or incompetent employees for longer than they should. When they finally decide to fire the employee, the employer often lacks written performance reviews or other records documenting the employee's shortcomings. Whether motivated by fear or a desire to be compassionate, employers are reluctant to blame the employee's performance for the termination, and may concoct an inoffensive or less personal reason for the termination, rather than telling employees that they were bad at their job. These purported niceties can backfire on employers and create unnecessary liability risks in the termination process.

To mitigate these risks, when terminating an employment relationship, employers should take a page out of the Trump playbook and "tell it like it is," explaining the real reason for the termination. If the employer's explanation sounds false to the employee, the employee is more likely to claim that the stated reason is merely a pretext for unlawful discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) or other federal or state anti-discrimination laws.

Pretext is an element of a claimant's burden of proof under the McDonnell Douglas burden-shifting framework used to analyze Title VII claims. To defeat an employer's motion for summary judgment:

A Title VII plaintiff must provide evidence not only that the employer’s reason was false, but also that the real reason was unlawful discrimination (St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). However, some courts have recognized that the ultimate inquiry is whether the employer terminated the employee for the stated reason or not (see, for example, Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012) and Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005)). An employer's best defense to a claim of pretext is to provide honest, objective reasons supporting its decision at the time of termination.

A recent Massachusetts state court case further highlights the importance of providing truthful explanations for an employee's termination. In Bulwer v. Mount Auburn Hospital, the Massachusetts Supreme Judicial Court (SJC) held that under the Massachusetts state anti-discrimination law, a plaintiff can defeat summary judgment and send a case to the jury merely with evidence of a false reason for his termination. The employee does not need any evidence that discrimination was the real reason for the termination. (Bulwer, (Mass. Sup. Jud. Ct., Feb. 29, 2016)). For more information, see Legal Update, Foley Hoag: Massachusetts SJC Holds False Reasons for Discharge Defeat Employer's Summary Judgment Motion Under Massachusetts Anti-Discrimination Law.

Employers should use similar candor when conducting performance reviews. Judges and juries can infer that an employer's stated lawful reason for termination, poor performance, is merely a pretext for an unlawful reason if the performance reviews are either:

For more information on performance reviews, see:

Practical Law also has published many resources to help employers play the "Trump" card and say "you're fired" in a way that minimizes liability risks. For more information, see: