Circumstantial Evidence Can Support a Discrimination Claim

Posted on November 9, 2011 by Tom Crane

Many potential plaintiff employees come see me about a discrimination case and first thing they say is they don't have evidence.  Really?  No evidence to show they suffered discrimination?  Often, they have evidence but do not realize it.

Yes, discrimination cases are the epitome of "he said, she said."  But, there are many forms of evidence that can buttress a claim.  Let's look at the claim against Herman Cain by Sharon Bialek.  She met with him to obtain help in finding a job.  If she was applying for a job with the National Restaurant Association, then she would meet the definition of an employee under Title VII.  In any event, let us assume she meets the requirements of Title VII and could have filed a claim back in 1997 when Mr. Cain allegedly abused her.  What evidence could she have have gathered to support her claims?  If she had mentioned the harassment soon after it occurred to close friends, that testimony would be admissible.  

Ms. Bialek claims Mr. Cain upgraded her room after her boyfriend made the reservation.  Anything, a receipt, a note from hotel management corroborating that upgrade would support her claim.  Evidence that other women had filed claims against Mr. Cain would be admissible.  This evidence would not be admissible to show Mr. Cain abuses women frequently.  Rather, it would be admissible to show that Herman Cain understands sex harassment and has discriminatory intent. 

Ms. Bialek claims Mr. Cain made advances, she resisted and he then responded, "you want a jpb, right?"  Simple testimony by Ms. Bialek regarding Mr. Cain's telling remark would be admissible.  His statement would not be hearsay.  It would fit an exception to hearsay.  Statements by supervisors which reflect sexist bias are admissible as statements against interest.  In fact, such statements are considered to be direct evidence of discrimination.  Since, such statements show discriminatory bias without need of any inference.  His statement has the legal effect of saying,I am treating you differently because you are a woman."  

Yes, these situations are "he said, she said."  They occur in closed rooms with no witnesses.  But, yes, these situations can be supported by circumstantial evidence and direct evidence.  

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Many Types of Evidence Help Prove a Discrimination Case

Posted on September 22, 2010 by Tom Crane

 I hear this concern every so often from potential employee clients.  They are concerned that they do not have "proof" that the employer said such and such.  Sometimes, this concern stems from something a general practice lawyer asked.  General practice lawyers ask various questions, often simply because they do not know what to ask about potential employment cases.  Employment lawyers on behalf of employees are hard to find.  So,  many or most potential employee clients meet with general practice lawyers or personal injury lawyers before finally seeing an employment lawyer.  

In employment cases, circumstantial evidence can succeed.  In fact, sometimes circumstantial evidence can be overwhelming.  

There are basically two ways to prove a discrimination case: 1) Employer tells the employee directly that s/he is being fired because they are the wrong color, wrong ethnic background, wrong gender, have a disability, etc., or 2) an adverse personnel action occurs for which there is no reasonable explanation.  If we rely on the second method of proof, then there needs to be some evidence of improper motive, such as jokes about race, ethnic origin, gender, disability or whatever.  

Regarding either method of proof, the employer will typically claim in a lawsuit that the worker had performance issues.  The employer might claim to have written or verbal warnings.  if so, then we get into the issue of comparatives.  That is, were other employees fired or disciplined for same or similar offenses? 

There is a third method known as statistical proof, but statistics rarely succeed in discrimination cases.

So, yes, circumstantial evidence is often the normal method of proof.  And, yes, the evidence is often "he said, she said."  Over the years, I have had many clients tell me that the employer made this joke about minorities or made that joke about another gender.  That is good evidence.  Even if the employee cannot provide me documented "proof" (whatever that means) that the employer made that statement.

The reality in employment cases is that the employer will always deny such statements.  Current employees will not remember anything.  The few employees who might be willing to testify to what they heard will do so only in court.  That is the norm.  People do not want to risk their jobs for someone else's case.  

Shoot, its a wonder we win as many cases as we do.  

So, yes, we rarely have third party witnesses to discriminatory statements.  The employer is rarely kind enough to reduce his discriminatory comments to an email.  And, no, we do not necessarily need a witness to "he said/, she said" comments.  Folks always want a more certain answer, but the truth is it all depends.....

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Most Potential Clients are Rational

Posted on May 20, 2009 by Tom Crane

So many clients or potential clients have come to see me or discussed their problems with me on the phone.  Invariably, the pattern goes like this:  They are so scared about their job and nervous about seeing me.  Many are so frightened that I will tell them they do not have a case or that the law does not protect them.  So, they often focus on the wrong things.  They cannot tell me what I most need to know.  Often, they recall specific incidents, what I refer to as evidence, only when they drive home.   They then call me later and tell me more.  But, their recollection may come after I have already told them they have no case.  

I sympathize.  I know what it is like to be afraid for your job future and believe, rightly or wrongly, that you lack control.  It is frightening.  

Many times, I have to tell a potential client that they do not have a claim, or their potential claim is very weak.  Bad news does occur.  But, for the rest of the potential clients out there, just remember that what what a lawyer most needs to hear is why you believe you have a claim.  Why you believe you are upset.  As with a doctor, history is everything.  Most, the overwhelming majority of abused, harassed workers are rational and have reached their conclusions based on pretty decent evidence.  You need to explain why you believe certain actions are discriminatory.  

Many times, an employee tells me that they were treated unfairly in being disciplined for an objective, seemingly valid offense.  It is only when I press them that they explain well, Joe Schmo has committed the same offense and never been written up.  And, by the way, no one else has ever been written up for this offense.  Now, that is evidence that we can use. 

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