Takeaway: The court's summary of its rationale points out two critical issues on which its decisions turned: 1) conflicting evidence and 2) favorable inferences. Understanding how to avoid these two pitfalls can be invaluable to employers—and both can be avoided with objective, contemporaneous and thorough documentation.

Avoid conflicting rationales for adverse employment actions. Whether either of the employer's rationales for its selection of the successful candidate was legally sufficient or factually supportable, the fact that there were two differing rationales allowed the 7th Circuit to determine that the employer's decision to overlook the plaintiff for the position could be viewed by a jury as pretext for discrimination or retaliation. Further, because there was no contemporaneous documentation of the reason(s) for the promotion decision, the employer was unable to fully and factually support either assertion.

Avoid creating situations in which "favorable inferences" can result. Without documentation, the court can make inferences that might benefit the opposing party.

The 7th U.S. Circuit Court of Appeals reversed and remanded a lower court's decision in favor of an employer on summary judgment. The case was a reverse discrimination matter in which a white employee asked to be considered for a promotion, but the position was given to a Black candidate ("the successful candidate") who had been working under the plaintiff's supervision.

Factual Background

When...

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