How to Prove Pretext in California Employment Law
If you’ve been wrongfully terminated or retaliated against at work, your employer likely gave a “legitimate reason” for firing you, such as poor performance, layoffs, or restructuring. But what if the reason isn’t true?
In California employment law, that’s called pretext: a false excuse used to cover up an illegal reason for firing you, such as retaliation, discrimination, or whistleblowing.
At King & Siegel LLP, our California wrongful termination attorneys have helped employees across Los Angeles, San Francisco, San Diego, Sacramento, and statewide prove that their employers’ reasons were pretextual and win justice.
Here’s how pretext works, why it matters, and how to prove it in court.
What Is Pretext?
Pretext means the employer’s stated reason for termination is not the real reason. In a retaliation or discrimination case, pretext refers to situations where an employer fabricates a performance issue or policy violation to conceal an illegal motive.
For example:
- You report harassment, and weeks later the employer fires you for “not being a team player.”
- You request medical leave and are your employer fires you for “attendance issues.”
- You complain about unpaid wages, and your employer suddenly eliminates your position.
These are classic examples of pretext.
Why Pretext Matters in Wrongful Termination Cases
Most employers will not admit they fired you for illegal reasons. Put differently, “smoking guns,” called “direct evidence,” are rare. State and federal courts allow employees to prove retaliation or discrimination by showing that the employer’s stated reason is not credible. To show pretext, you first need to nail down the employer’s stated reason. Then, you need to rely on legally recognized types of evidence that the employer’s reason is not the real reason. Most successful cases rely on numerous types of evidence to demonstrate pretext—one type of evidence is usually insufficient.
Once you show pretext, the court can infer the true motive was unlawful, such as retaliation for protected activity or discrimination based on disability, pregnancy, race, or another protected characteristic.
Common Evidence of Pretext in California Employment Cases
The law has defined broad categories of evidence that count as circumstantial evidence of pretext. Plaintiffs’ lawyers often use the following types of evidence to show pretext:
- Timing: You are fired shortly after you complain, take leave, or engage in protected conduct
- False Reasons: The employer’s stated reason is provably false
- Shifting Explanations: HR first says “budget cuts,” later says “performance issues”
- Unequal Treatment: Co-workers who made the same mistake were not fired
- Policy Violations: The company did not follow its own termination procedures
- Lack of Documentation: The employer does not have contemporaneous documentation of things one would expect to be documented, suggesting the reasons are made up after the fact
- Stale Discipline: The employer fires or disciplines you for things that happened long ago, again suggesting the reasons are made up after the fact
- Sham Investigation: If the process is rigged, it suggests a predetermined outcome
These facts often reveal the stated reason was a cover story. The more types of evidence you have supporting pretext, the better. Any one category of evidence alone may not be enough to show pretext.
Legal Test for Pretext in California
California courts use a three-step test based on the McDonnell Douglas burden-shifting framework:
- You show that you engaged in protected activity (or are in a protected class) and were fired.
- The employer claims they had a legitimate, non-retaliatory reason.
- You prove that reason is false and pretextual, and that the true motive was unlawful retaliation or discrimination.
You do not have to prove your employer admitted to breaking the law. You only need to show that their explanation does not hold up.
Real-World Examples: California Retaliation Cases
A senior engineer at a Silicon Valley startup reports that management manipulated financial data before an investor meeting. His boss places him on an aggressive Performance Improvement Plan (PIP) for “communication issues” that never existed before. After failing the PIP, he is terminated. Sudden discipline after a whistleblower disclosure, especially where prior reviews were positive, suggests the PIP was a paper trail to justify retaliation.
A nurse at a Los Angeles hospital takes protected medical leave under the California Family Rights Act (CFRA) to recover from surgery. Two weeks after returning, her boss writes her up for “attendance issues” and terminated shortly thereafter for “unreliability.” The termination is based on absences that were protected by CFRA, and the employee had never been disciplined. The close timing and reliance on protected leave support an inference of retaliation.
A warehouse supervisor in Riverside reports to HR that hourly employees are being forced to work off the clock. A month later, management claims he was terminated for “poor leadership” and “failure to follow procedures,” but his recent performance review rated him “exceeds expectations.” The stated reasons contradict contemporaneous records. Courts find that inconsistency between stated reasons and performance documentation supports pretext.
A marketing manager in Sacramento reports repeated sexual comments from a director. HR opens a brief “investigation” but takes no action. Two months later, her employer fires her for “team fit” and “interpersonal challenges,” despite positive reviews. The employer’s reliance on subjective, vague criteria (“team fit”) after a harassment complaint raises suspicion. Courts view subjective and shifting reasons as evidence of pretext.
How Our California Wrongful Termination Attorneys Help
At King & Siegel LLP, our attorneys have won over $100 million dollars for employees across California. There are over 50 ways to prove pretext; we have mastered all of them. Our comprehensive, fact-driven approach has helped us win major settlements and verdicts in retaliation, discrimination, and whistleblower cases throughout Los Angeles County, the San Francisco Bay Area, and statewide.
FAQs About Pretext and Wrongful Termination in California
What is pretext in a wrongful termination case?
Pretext means your employer’s reason for firing you is false or misleading, used to hide retaliation or discrimination.
How do I prove pretext?
You can use timing, inconsistent explanations, positive performance records, lack fo documentation, policy violations, comparative evidence, me-too evidence, and more to prove pretext.
Can I sue if my employer lied about the reason for my termination?
Maybe. If you can prove the stated reason was pretext to cover up an illegal motive, you may have claims for wrongful termination, retaliation, or discrimination under California law.
Do I need evidence to prove pretext?
Yes. Emails, texts, reviews, and witness statements all help. Your attorney can subpoena records to uncover the truth.
What is the statute of limitations in California?
For most state law claims, you generally must file a complaint with the California Civil Rights Department (CRD) within three years of the violation. Some claims trigger special anti-retaliation laws with their own, shorter statutes of limtiations.
Speak With a California Wrongful Termination Attorney Today
If you suspect your employer’s explanation for your firing was pretext, contact King & Siegel LLP today. We represent employees across Los Angeles, San Francisco, San Diego, Sacramento, and all of California in wrongful termination, retaliation, and discrimination cases. At King & Siegel LLP, we understand what is at stake. We know how to take on powerful companies—and win. Our attorneys trained at the nation’s most elite law schools, including Harvard, Columbia, Stanford, and NYU, and litigated at the country’s most respected firms. We offer free 30-minute consultations, in English or Spanish. We only represent employees, never corporations.
Contact us and let us help you act strategically, legally, and with confidence.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.