Evidence in Discrimination Cases

posted by Neil Klingshirn  |  Jan 11, 2010 1:08 PM [EST]  |  applies to Ohio

Discrimination cases turn on the employer's motive for taking an employment action, like failing to hire or firing an employee.  The employee must prove that the employer's bias against people in the employee's protected class motivated the employer to take the adverse action. The employer, on the other hand, typically states that it took the adverse action for legitimate business reasons.

The discrimination victim thus needs evidence of motive, which is invisible and difficult, but not impossible, to prove.  Motive evidence includes direct evidence, such as admissions or statements from which unlawful motive is obvious, or indirect evidence, such as statistics or a pattern of preferential treatment of those outside of the protected class.  Indirect  evidence also includes pretext, which is proof that the employer's stated reason for taking the adverse action is false.

Plaintiffs Must Prove all Elements of Their Cases

In addition to tackling the difficult problem of proving motive, discrimination victims must prove all of the other elements of their claims.  This also includes proof that:
  • The Plaintiff is in the protected class; and
  • The employer treated the Plaintiff materially worse than similarly situated employee's outside of the Plaintiff's protected class.  
The Plaintiff has the burden of proof on every element in his or her claim, including the obvious elements. The gender discrimination victims who fail to prove that they are male or female will thus lose their discrimination case the same as if they fail to prove unlawful motive. However, they can prove undisputed facts with relative ease, typically by obtaining an admission from the other party or by stipulating to the undisputed facts. A stipulation is an agreement regarding facts that the court treats as binding on the parties. The parties may thus stipulate to a Plaintiff's age, race or gender, if otherwise undisputed.

Treating a Comparably Situated Employee Differently

The discrimination Plaintiff must prove differing treatment of "similarly situated" employees inside and outside of the protected class.  Some courts require proof that the similarly situated employee is similar in every significant respect.  This may be difficult to prove if every employee performs a different job.  Other courts define “similarly situated” in terms of who reports to the same decision-maker. Employees with similar responsibilities who report to the same or higher superior would qualify as similarly situated in these courts.

Most courts require proof of differing, adverse treatment with respect to a "material" term or condition of employment. A discharge or suspension without pay is a material, adverse action. A verbal reprimand, by itself, is usually not. A campaign of harassing, unwarranted reprimands and other non-material actions, taken together, may be sufficient.

Unlawful Motivation for the Differing Treatment

In addition to proving differing treatment, the discrimination victim must also prove an unlawful motive for it.  Motive is unlawful if based on the Plaintiff's gender, race, religion, national origin, age, disability or other protected class status. In other words, if an employer concedes that it promoted a male instead of an equally qualified female, but claims that it did so because the male had more seniority, the Plaintiff will lose if the jury believes the employer’s stated reason. Although the victim proved discrimination in this example, the jury accepted the employer’s explanation that discriminated on a lawful basis.

Employers rarely admit employment discrimination. Since invisible and usually hidden, unlawful motive is hard, but not impossible, to prove.  To prove unlawful discrimination, a Plaintiff should have some or all of the following evidence:
  1. Direct, or "smoking gun" evidence, such as:
    1. disparaging remarks;
    2. slurs;
    3. admissions of bias (“women don't belong in law enforcement/should not be on construction sites/do not make good engineers”);
    4. disparaging or demeaning jokes or treatment.
  2.  Indirect evidence, such as:
    1. statistics (an all white, male executive team or a higher than expected proportion of older workers laid off);
    2. patterns of similar discrimination; and
  3.  Pretext, which is a false reasons given by the employer to cover up the unlawful reason.

Gathering Evidence

Since the Plaintiff has the burden of proof, he or she must gather the evidence and present it in court.  The Plaintiff typically starts with what he or she saw or heard and the documents that are available to him or her. The Plaintiff can also lawfully record conversations under certain circumstances, which juries tend to find believable.  The Plaintiff should confer with an experienced attorney before recording conversations, however to ensure that he or she may lawfully do so.

The Plaintiff should not, however, gather evidence to which she is not allowed access.  An employer can treat such conduct as a violation of a company rule protecting confidential information that would justify discharge. If the jury believes the employer would have terminated the Plaintiff for violating the rule, the Plaintiff’s right to collect damages may stop at the time that the employer learned of the work rule violation. In addition, if the Plaintiff accesses a computer using a password without permission, he or she may be guilty of federal computer fraud, which is a crime.

The Plaintiff can also gather the evidence from those willing to volunteer it, such as other employees who see or hear:
  • disparaging remarks about members of the protected class
  • degrading or intimidating symbols of bias, such as graffiti or a noose,
  • discriminatory jokes,
  • slurs, or
  • admissions of bias
For example, employees who heard the Vice President of Marketing say in the big Marketing meeting that the company needs “young and hungry employees to succeed and grow” can testify that they heard that remark.  Similarly, co-workers who heard disparaging remarks or saw a noose can testify about what they heard and saw.  Written, signed statements made at the time of the incident will help to preserve the accuracy of the evidence.

Discrimination victims and those sympathetic to them usually do not have access to all of the evidence of discrimination.  In most cases, in fact, the employer has most evidence available, including knowledge of the real reason it discharged, demoted or suspended the Plaintiff. The employer rarely shares such evidence voluntarily, however. To obtain it, the Plaintiff must use the Discovery Tools provided by the court’s Rules of Civil Procedure. The Discovery Tools give the Plaintiff access to company records, including personnel files, internal communications, production records, statistics of hiring and termination decisions and other documents or information that may show an unlawful employer motive. The Discovery Tools also allow the Plaintiff to question the decision-makers under oath and to obtain documents from and question third parties.

Proving Pretext

Since motivation is invisible, the U.S. Supreme court early on adopted a procedure for proving unlawful discrimination, which starts with what lawyers call a “prima facie” case.  If the Plaintiff can prove a prima facie case, he or she will win their discrimination suit, unless the employer states a legitimate, non-discriminatory reason for the adverse employment action.  If the employer articulates a non-discriminatory reason, the Plaintiff will lose unless he or she proves that the unlawful discrimination actually motivated the decision, or that the stated reason is not the real reason or was not a sufficient reason to motivate the decision.  Proof that the stated reason is not real or sufficient is called “pretext” evidence.

To establish a prima facie case of discrimination, the Plaintiff must show that he or she:
  • Is a member of a "protected class";
  • Is qualified for the job;
  • Was terminated, demoted or otherwise treated materially worse than someone outside of the  protected class; and
  • Was damaged by the discrimination.
An employer can “articulate,” or state, almost any legitimate reason to rebut the discriminatory inference of the prima facie case. The employer does not have to prove that the articulated reason is the real reason.  However, by forcing the employer to put a legitimate reason on record, the Plaintiff can challenge the stated reason as phony or insufficient.  

If the Plaintiff proves that the stated reason is phony or insufficient, the jury may, but does not have to, conclude that the real reason was an unlawful one.  The U.S. Supreme Court permits an inference of discrimination because the employ is in the best position to know the real reason. If it offers instead a phony reason, a jury can fairly infer that it did so to cover up an unlawful reason.  

Although pretext provides powerful evidence of discrimination, it is still just one piece of evidence. A Plaintiff must prove by the greater weight of all of the evidence that discrimination was a motivating factor in his or her termination, demotion or other material, adverse action.

Proof of Qualifications for the Job

For the prima facie case, whether a Plaintiff was “qualified” for the job in question depends on the Plaintiff’s qualifications compared to the job duties, rather than his or her performance of those duties. That is, if the job requires a bachelor’s degree and five years of experience, then the Plaintiff is probably “qualified” for purposes of the prima facie case if he or she has a bachelor’s degree and five years of experience.  By comparison, if the employer wants to argue that the Plaintiff did not perform his or her job to its satisfaction, then it can claim poor job performance as a legitimate, non-discriminatory reason for the discharge.  That is, a court should not permit an employer to attack qualifications based solely on its evaluation of the Plaintiff’s performance in the job.

If the employer does not have a job description or other statement of job duties, the Plaintiff can look at the qualifications of comparable employees. For example, he or she could compare the resumes of the other people who hold comparable positions. If the employer hired someone outside of the protected class with a tenth grade education, a court should treat a 10th grade education as the employer's actual, minimal education requirement for the job.

posted by Neil Klingshirn  |  Jan 11, 2010 1:08 PM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
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