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.