What proof is available for employment discrimination or harassment cases?

Direct evidence of disparate treatment in an employment discrimination case

Title VII and all state anti-discrimination statutes outlaw intentional discrimination. Under these laws, proof of the employer’s motive for engaging in the adverse employment action is critical in proving liability. Thus, an attorney will want to evaluate whether the employee has any direct evidence that the employer’s action was motivated by discriminatory intent.

The courts generally define direct evidence as “evidence which, if believed, proves the facts of [discriminatory animus] without inference or presumption.” For example, there is direct evidence if the employer indicates that the adverse action was taken because of a membership in a protected class. Thus, a discriminatory employment policy or a corporate decision maker’s express statement of a desire to remove employees in a protected group is direct evidence of discriminatory intent. In one case a memorandum by the president of a company indicating a preference to hire young men between 30 and 40 constituted direct evidence of discrimination.

Direct evidence of discrimination may also exist where the employer makes derogatory comments about or engages in stereotyping the protected class to which the employee belongs. For example, cases have found direct evidence of discrimination where an employer referred to a Mexican-American as a “dumb Mexican,” an employee referred to a female plaintiff as “an old warhorse” and to her students as “little old ladies,” and a manager said that the plaintiff was “an old fuddy-duddy.”

Direct evidence of discrimination is rare, but it is not necessary to prove discrimination. Cases may also be proven by circumstantial evidence.

Circumstantial evidence of disparate treatment in an employment discrimination case

In the absence of direct evidence, discrimination may be proven by circumstantial evidence.

In cases that depend on circumstantial evidence, the employee generally will have to meet the burden-shifting standard set forth by the Supreme Court in a series of cases that essentially require that the employee be able to establish a prima facie case of discrimination and rebut the employer’s alleged legitimate, non-discriminatory reason for its actions.

To establish the prima facie case of discrimination, the employee will typically have to show: (1) membership in a protected class; (2) qualification for the position held or sought; (3) an adverse employment action; and (4) other, similarly situated, individuals (not within the protected class) were not subjected to the adverse employment action.

Upon demonstration of a prima facie case, the employer will have to articulate a legitimate, non-discriminatory reason for its actions. Next, the employee will have to rebut the employer’s alleged legitimate, non-discriminatory reason for its actions. The courts of appeals have been divided as to what this rebuttal entails. Some have held that the plaintiff must prove both that the employer’s explanation is false and that the real reason was discrimination. Others have held that a prima facie case, combined with proof sufficient to allow a jury to disbelieve the employer’s explanation, is sufficient.

Evidence of disparate impact in an employment discrimination case

Title VII and all state anti-discrimination statutes outlaw facially neutral policies or practices that have a significant adverse impact upon a protected class.

Disparate impact cases are primarily dependant upon statistical data. Thus, a lawyer evaluating this type of case will first determine whether the employee has any evidence that the employer’s policy or practice has a significantly disproportionately exclusionary impact on his or her class. Among other things, this evidence may consist of statistical evidence regarding the rates of hire and promotion and population/workforce comparisons.

Next, the case evaluation will focus on evidence showing that the employer’s policy or practice: (1) is neither job related nor consistent with business necessity; or (2) even if job related and consistent with business necessity, can be replaced with an alternative policy or practice with a lesser disparate impact. This analysis can be very difficult and may require consultation with an expert in the field.

Evidence of harassment at your job

Title VII and all state anti-discrimination statutes forbid harassment because an individual belongs to a protected class.

Any case evaluation of a potential harassment claim will determine whether the employee has evidence of harassing conduct that is sufficiently severe or pervasive to create a hostile work environment.

The conduct must be either: (1) based on the employee’s class (e.g., sexually explicit remarks made to a woman or anti-black remarks made to an African-American); or (2) directed at the employee because of his or her class (e.g., a white foreman directs profanity solely at Hispanic employees or a white manager uniformly hands out the best assignments to Caucasians and the worst assignments to African-Americans).

In sexual harassment cases, a lawyer evaluating the case will want to determine whether a claim of quid pro quo or hostile work environment or both can be made out. The EEOC defines quid pro quo sexual harassment as:

[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual . . ..

The EEOC defines hostile work environment sexual harassment as:

[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Although a claim for quid pro quo harassment is, by definition, restricted to sexual harassment, a claim for hostile work environment harassment may be made for any of the classifications protected by Title VII and is analyzed under the same principles as a claim for hostile work environment sexual harassment.