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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.