Evidence of Discrimination

Proving unlawful discrimination is often based on circumstantial evidence. It is not very often that we will find a sophisticated employer committing direct acts of discrimination (e.g. discriminatory remarks about a protected class of persons).

There are many scenarios which can lead to a reasonable inference that discrimination is motivating the adverse employment action like a firing or demotion.

Here are a few that are important to look at:

Who is your replacement? If you are over 40 and suspect you were terminated because of your age, is your replacement substantially younger than you? Or if you have a disability or medically condition and suspect you were discriminated on that basis does it appear that your replacement is injury or condition free. If you believe your race or ethnic origin motivated the decision what is the race or ethnic origin of your replacement? The list goes on and on. If you are a member or a protected class and suspect discrimination-who is your replacement? This could suggest that discrimination affected the decision to
terminate you.

Were you terminated or demoted for a false reason? If the employer is providing a dishonest reason as a basis for your termination or demotion this could very well lead to a reasonable inference that the decision was a result of discriminatory bias.

Is your employer changing the story for the reasons you were discharged or demoted? Shifting contradictory reasons are often are helpful in supporting an inference that the adverse decision was motivated by discrimination.

Were you treated differently than others? If an employee can show that he was treated differently than similarly situated employees, he/she may use this evidence of disparate treatment as circumstantial evidence. To show that employees are similarly situated, a plaintiff need only establish that he or she was treated differently than other employees whose violations were of “comparable seriousness.”

Are there contradictions, weaknesses or inconsistencies in reason your employer gave for your discharge or demotion? A causal link can be shown by demonstrating “ ‘weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for his action so that a reasonable fact finder could rationally find them unworthy of credence” and hence infer discriminatory intent.

Were there departures from or irregularities in normal company procedures? Departures from regular practice, or deviations from an employer’s own policies, allows an inference that an improper motivation was in play.

If you believe you have been wrongfully terminated or demoted examine the above-mentioned scenarios. Did anything like this happen to you? If so you should be consulting with an attorney.

Were you terminated because of a sham or inadequate investigation? A sham investigation also supports a finding of improper discrimination. If the investigation was suspicious, incomplete, inconsistent or dishonest this showing could lead to a finding of discrimination.

Were you given unobtainable goals? It has been found that it is permissible for a jury to view the imposition of an unattainable goal as evidence of pretext because a jury may reasonably view the goal or production quota as an effort to set up an employee for failure.” The performance improvement plan that an employer imposed on the employee was specifically designed to create such a reason to fire the employee by setting performance standards that could not be met.

Posted: 03/19/12 Joseph Dzida

Categories: CRD Employment