I tell my clients this can happen, but they usually just do not believe me. Good cases do sometimes lose at trial. Look at what happened in Wei v. Southwest Research¬†Institute¬† No. 12-CV-00872 (W.D. Tex. 2015). Qiang Wei is from China. He speaks Chinese. It seems obvious that a Chinese person might speak Chinese, but his supervisor told him not to speak Chinese at work. He spoke Chinese at work only infrequently. Yet, his supervisor even warned Dr. Wei in his performance evaluation that he had been told to only speak English at work, unless in an “isolated” area. The court rightly denied summary judgment and noted these remarkable statements made by the supervisor. There are several cases holding that orders to speak only English without a good reason (e.g., safety) indicate discriminatory bias. To make his case even better, he complained about this discrimination and was fired soon after his complaints.

The parties did not settle, so the matter went to jury trial in March, 2015. The jury, after deliberating all day, eventually returned a mixed verdict, but one which ultimately went against the employee. The jury deliberated all day on a Friday. So, it would not surprise me if they simply grew tired of discussing and agreed on the easiest answer: no. Tell the plaintiff no and everyone can go home right away. But, if the jury finds there was discrimination, then that leads to another long discussion about what to award the plaintiff. The truth about jury dynamics is that often, members of the jury just want to get home to their everyday tasks.

So, yes, even when employee has direct evidence of discriminatory bias, a plaintiff can still lose.