Articles Posted in Wrongful Termination

Non-competition agreements in Massachusetts have been the center of debate for several years. As bills to ban non-competes before the House of Representatives and Senate continue to swirl, many employees in Massachusetts are forced to agree to restrictive covenants on a take-it-or-leave-it basis as a condition of employment. While Massachusetts is certainly not the only state where non-competes are enforceable, it’s status as a technology hub draws a sharp contrast to its leading rival: California. Unlike Boston or Cambridge, employees in Silicon Valley need not be concerned about such contracts since the California legislature has largely banned such restrictions except in very limited circumstances.

From this perspective, it’s no wonder that Silicon Valley leads the world and eclipses Boston as home to the largest and most prominent global technology companies. The absence of non-competes creates a more friendly business environment for employees and companies alike, with Facebook being a prime example. Founded in a Harvard dormitory, Facebook eventually made it’s home in California. Smart choice. The ability to hire top talent unencumbered by non-competes agreements meant more resources could be dedicated to building the company and less towards defending the inevitable litigation that flows from restrictive covenants.

Proving employment discrimination without direct evidence – regardless of whether its based on age, handicap, or some other protected category – ultimately boils down to whether the employee can show that the employer’s stated reason for the adverse employment action (e.g., termination, demotion, failure to promote) is a pretext for unlawful discrimination. As discussed in Proving Employment Discrimination Through Circumstantial Evidence, employment discrimination cases are typically proven through circumstantial (as opposed to direct) evidence under a three-part, burden-shifting framework.

It is in the final stage of this framework that an employee must carry the burden of showing pretext. As the non-exhaustive, baker’s dozen list below illustrates, there are numerous ways in which pretext for unlawful employment discrimination can be inferred:

Aside from cases involving direct or “smoking gun” evidence, which is rare, proving an employment discrimination claim is often nuanced and accomplished through the use of circumstantial evidence. As the Supreme Court in Rogers v. Missouri Pacific has long recognized, such evidence can even be the most powerful of the two:

Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.

Employment discrimination claims often hinge on the admissibility of evidence. A plaintiff bringing an employment discrimination claim may, for example, offer into evidence testimony from other employees who also believe they were victims of discrimination. Such evidence is referred to as “me too” or propensity evidence and has been a subject of debate among litigants. Be it discrimination based on age, gender, or another protected class, propensity evidence can be powerful if admissible.

As background, Federal Rule of Evidence 404(b)(2), which is virtually identical to the Massachusetts corollary, provides that evidence of a crime, wrong, or other act “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Because motive, intent, and state of mind are directly at issue in employment discrimination claims, “me too” or propensity evidence may be properly admitted under these rules under certain circumstances. Other relevant portions of the Rules of Evidence with respect to “me too” or propensity evidence include FRE 401 (Test for Relevant Evidence) and FRE 403 (Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).