![handle is hein.journals/osljsxcr81 and id is 1 raw text is:
OHIO STATE LAW JOURNAL ONLINE
SIXTH CIRCUIT REVIEW
Johnson v. Ohio Department of Public Safety: Last
Chance Agreements May Make Claims of Racial
Discrimination More Difficult to Prove
ANDRIA DORSTEN EBERT
A recent Sixth Circuit ruling may make it more difficult for
plaintiffs to meet their factual burden in employment discrimination cases
if they have signed a Last Chance Agreement with their employer. A Last
Chance Agreement (LCA) puts an employee on notice that if prohibited
conduct continues, or if performance does not improve, they will be
terminated.
LCAs do not give employers free rein to terminate employees;
employers must still comply with ap able fed oye aws,
such as the prohibition of discrimination contained in Title VII of the
Civil Rights Act of 1991. Similarly, an employee may not prospectively
waive his or her rights under ... Title VII. Hamilton v. General Elec.
Co., 556 F.3d 428, 434 (6th Cir. 2009) (the case remanded and tried, and
in a separate ruling, the Sixth Circuit affirmed a jury verdict in favor of
the employer. Hamilton v. General Elec. Co., 487 Fed. App'x. 280 (6th
Cir. 2012)). But even though an LCA does not change a plaintiff's rights
under Title VII, it may make it more difficult for a plaintiff to meet their
factual burden of discrimination under the recent ruling in Johnson v.
Ohio Dept. of Public Safety, 942 F.3d 329 (6th Cir. 2019).
In the Sixth Circuit, the court uses the McDnnell _Duglas
hurden-shifting framework when analyzing Title VII racial
discrimination claims. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). This analysis has three parts-first, the plaintiff has the burden of
proving a prima facie case of discrimination; second, if the plaintiff is
successful in proving the prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the
action; and third, should the defendant carry their burden, the plaintiff
must then have the opportunity to prove that the proffered reasons were
a mere pretext for discrimination. Id at 802-804. However, when an LCA
is part of an allegation of impermissible discrimination, at what point in
the legal analysis should a court consider its terms? At the outset, in the
prima facie stage as evidence that claimant and their comparators are not
similarly situated, or later, in the final burden-shifting stage to
demonstrate that the legitimate, nondiscriminatory reason for the
2020]](ViewImageLocal?handle=hein.journals/osljsxcr81&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most