Do’s and don’ts for preserving honest belief defense

Whether an employer is successful in getting an employment discrimination case dismissed often depends on whether it can show it had an “honest belief” in a nondiscriminatory reason for its employment decision. To demonstrate an honest belief, the employer must show it made a reasonably informed and considered decision by relying on the particularized facts before it. A recent decision from the U.S. 6th Circuit Court of Appeals (whose rulings apply to all Michigan and Ohio employers) demonstrates the scrutiny that the factual basis of employers’ decision-making processes may receive.

Facts

Airgas USA hired Murray Fisher in October 2019 as an operations technician. A month later, he was diagnosed with liver cancer, but he continued to work for the next nine months, receiving positive performance reviews.

In August 2020, Fisher requested time off to receive medical treatment. When he returned to work in October, he was still experiencing pain and nausea. At a coworker’s recommendation, he began taking a legal hemp-based product to manage his pain. Although he didn’t tell his employer he was taking it, Airgas had no policy prohibiting hemp.

False positive