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"OK, Prove It!" -- Proving Discrimination in Court
"OK, Prove It!" -- Discrimination
- Ultimately, you the employee have the burden of proving an
intent to discriminate, but evidence of a clear admission of bias
is not required.
- Indirect proof of intent is sufficient to prove discrimination.
This proof can be evidence of a different disciplinary behavior
shown to other workers who commit similar infractions but who are
not disciplined as severely (or laid off), and who are not in the
same "protected category" of age, sex, race, disability, medical
leave, religion, ancestry, national origin, etc. Reeves v.
Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133. This
kind of proof is called proof by "disparate treatment",
meaning different treatment of employees "similarly situated".
- So, the proof of discrimination usually focuses on
comparing how the employer treated you with how the employer
treated others "similarly situated". We lawyers get some idea of
what "similar situated" means by reading discrimination decisions
by courts who asked that very question. Courts have held that
"[I]individuals are "similarly situated" when they have similar
jobs and display similar conduct". In one case, Josephs v.
PacBell (Dec. 27, 2005) 2005 DJ DAR 1434 [citing Vasquez
v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, 641],
the court found the complaining employee to be "similarly situated"
with three other employees where he provided evidence that each of
the other employees, like him, were "service technicians", each
failed to reveal a prior criminal conviction on his employment
application (even though the convictions were quite different);
each was terminated, and each participated in the company's
internal grievance procedure. The employee in Josephs used
this evidence as proof that the employer had discriminated because
it reinstated these three employees, but not him. Josephs contended
he was not reinstated because the employer perceived him to have a
mental disability.
- A big issue of proof in discrimination cases is the proof that
if the discrimination occurred, it actually caused the
employee's termination. What amount and kind of proof of
"causation" does an employee have to make? The proof here usually
causes juries to scratch their heads, because they hear evidence
from the employer that the employer had some "honest, good faith"
reasons to terminate, usually related to poor job performance or a
"reduction in force". The employee has the burden of proving
causation. The jury is instructed that it can make a finding that
discrimination occurred and that it caused the termination
if the termination would not have occurred "but for" the
discrimination, even if other factors played into the decision.
This instruction is called the "mixed motives" instruction. It
basically states that even if the employer was unhappy with the
employee's performance, it would have kept the employee but for the
added factor of discrimination. In effect, all the factors
together, operating concurrently, resulted in the firing. Take any
factor away, and the remaining factors would not be enough to cause
the firing.
- Here is how the "motivating factor" jury instruction
reads: "A motivating factor is something that moves the will
and induces action". Often juries are also instructed that to
decide if the employer would have made the same decision to
discipline the employee but for his "age" or his
"disability" or his "sex" or his "medical leave" or his "race" or
other such category. Employers want this second component of the
instruction because they want to argue to the jury that the
employer would have made the decision to fire the employee
independently of his "protected category" of age, race, sex,
etc.
- Just when you thought this "posting" couldn't get more
technical, I'm about to throw another legal word into your new
vocabulary: "PRETEXT". This word means "lie" in the law, and
it's used to state that if an employee is to prove discrimination,
he or she can make that proof by showing that the reasons given by
the employer for the "adverse employment action" [another big
phrase for firing, demotion, transfer, cut in pay, change in
duties, bad performance reviews, etc.] are LIES. This proof means
that you expose the employer's reasons as so incredible that a jury
can conclude they are deliberately false to hide a discriminatory
motive.
How You Can Use This Information
- If you are still working, and feel you are being "singled out"
because you are in a "protected category" of age, sex, race,
national origin, disability, pregnancy, medical leave, etc., begin
now to identify not just what is happening to you, but what is NOT
happening to employees who are "similarly situated" with you. For
example, if you are being hyper-scrutinized and hyper-criticized
for minor infractions, while co-employees [not in your "protected
category"] in your department are not, then identify these persons
by name and home addresses or cell phone numbers, so your attorney
can reach them as witnesses before you file a suit. For example,
identify co-employees who may arrive late or leave early, but who
are not disciplined, while you are late only once, and are severely
criticized by a memo to your personnel file.
- If you are still working, and believe you are being "singled
out" because you are in a "protected category", and if you have
assembled information showing a double standard, you likely will be
required to report the discrimination and/or harassment to the
appropriate manager or human resources executive, in accordance
with company policy. Read that policy, and use it. Use of the
policy will have the legal affect of placing the burden on the
employer of investigating and correcting the discrimination, or
being liable for its failure to do so. [Conversely, the employer
can assert an "affirmative defense" that if you didn't report the
discrimination, it can't be held responsible for consequences you
could have avoided by reporting the problem].
- If you are still working, be sensitive to even hearsay or
"stray remarks" by managers that may indicate some bias because of
your "age, sex, race, national origin, disability, medical
condition, religion" etc. Note these in your private diary soon
after hearing these remarks. They will be very useful (although not
necessary) in your later presentation of evidence at trial. For
example, you may hear a manager say that its time to bring in young
aggressive sales people, or that older workers are not adapting to
changing job requirements. Maybe a manager will say that an
employee is to have a certain "look" or "style" that seems to favor
employees of a particular gender, age or race. For example, a
pharmaceutical company may indicate by its hiring and firing
practices that it prefers attractive young single females as
product reps.
- Marshall the facts and assemble the documents (including sales
and productivity data) that show your discriminatory manager's
actions and accusations are based on LIES. Write rebuttal memos to
contest negative performance reviews or written warnings. If
indicated, be clear that you believe the lies are intended to hide
the manager's discrimination. Obviously, keep copies because you
may anticipate they will be needed to defend your good work and
support your discrimination charge. Keep these copies off
site.
- If you are still working, think now of who in the employment
pool may be favorable witnesses for you in a later litigation.
Obtain enough information to permit your attorney (or the CA Dept.
of Fair Employment) to contact these persons for statements.
- If you make an internal complaint of discrimination with the
employer, make it in writing, and provide supporting information.
Request the employer to protect you from any retaliation because
you have provided the information. [the CA Government Code imposes
full liability on supervisors and their employers for retaliation
related to a discrimination complaint]
- And of course, since I am a lawyer, I couldn't end this
"posting" without inviting you to take a proactive step of visiting
legal counsel BEFORE your termination or quitting in order to know
the best "next steps". You may be sure the employer is asking its
counsel about you.
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