Termination and other adverse employment actions often give rise to claims of intentional discrimination and other litigation. In many cases, the issues will boil down to an assertion that the facts supporting the employer’s case are not accurate. Whether or not the employer was right on the facts, it still may have a defense based on the “honest belief” rule, which focuses not on the accuracy of the underlying facts asserted by an employer, but rather on what a decision-maker honestly believed the facts to be and whether that belief provides a legitimate, non-discriminatory reason for an employment decision.

The “honest belief” doctrine has been under attack by employee advocates, with some claiming it insulates employers from liability where a supervisor or manager lies to a decision-maker about the allegedly true reasons for an adverse employment decision. However, for those legal jurisdictions where the “honest belief” doctrine has gained traction, it appears that the defense will remain a viable option. Early last week, the United States Supreme Court denied a petition by a fired college employee in Ohio who sought to review a federal appellate court’s decision in Blizzard v. Marion Technical, et al., where the appellate court found that the employee lacked an Age Discrimination in Employment Act claim because his employer had an “honest belief” in its asserted nondiscriminatory reasons for discharging the employee. The court thus found that the employer had shown substantial evidence that it had a reasonable basis to be dissatisfied with the employer’s performance, and upheld the ruling in favor of the employer.

While the continued availability of an “honest belief” defense is welcome news to employers, establishing the “honest belief” defense is not always simple, and an employer will be in a stronger position if it does not have to rely exclusively on such a defense. Thus, if an employee is terminated for work performance problems, the employer should still seek to ensure that it has thoroughly documented these problems throughout the employee’s employment and not merely the termination incident. Employers should also pay particular attention to their own policies and ensure that all employees are consistently disciplined according to those policies. Evidence of disparate discipline or of a failure to follow the disciplinary steps set forth in the employer’s own policies could result in a finding of pretext that, depending on the facts, may not be overcome by an “honest belief” defense.