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…..