Articles

Direct and Indirect Evidence of Discrimination

November, 2016

PROVING DISCRIMINATION BY

DIRECT AND INDIRECT EVIDENCE

             There are, generally speaking, two types of evidence from which a jury can properly find the truth as to the facts of the case.  One is direct evidence, such as the testimony of an eyewitness.  The other is indirect or circumstantial evidence, that is, the inferences which may be drawn reasonably and logically from the proven facts. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with all the evidence in the case, both direct and circumstantial.

Direct evidence of discriminatory intent may include evidence of actions or remarks of the employer that reflect a discriminatory attitude or comments that demonstrate discriminatory animus in the decisional process.

For example, these could include discriminatory remarks about an individual’s age in an age discrimination case, his/her race in a race discrimination case, his/her disability in a disability case and so forth.  It makes no difference that the employer claims that such words were never spoken:  it’s up to the jury to decide whom to believe.

However, most discrimination cases do not have this “smoking gun” direct evidence of discrimination.

Indirect or circumstantial evidence of illegal discrimination includes proof of a set of circumstances that allows the jury to reasonably believe that some impermissible factor, such as a person’s age, race, color, religion, sex, marital status, gender identity or expression, national origin or physical or mental disability, more likely than not, were factors inhow that person was treated by the defendant.

A popular example of indirect evidence is seeing a person enter the room with wet clothes.  You could infer from the wet clothes that it was raining.

Relying upon circumstantial evidence as indirect proof of discrimination is just as reliable as direct evidence to prove discrimination by what is called a preponderance of the evidence.

Such proof allows the jury to make an inference that the employer’s reason for the adverse employment action, termination or refusal to hire, for example, is a pretext for illegal discrimination.

Indirect or circumstantial evidence could include a jury’s disbelief in the employer’s stated reason for the adverse employment action.  The U.S. Supreme Court has held that proof that an employer’s explanation is unworthy of belief is one form of circumstantial evidence that is probative of intentional discrimination that may be quite persuasive.  Reeves v. SandersonPlumbing Products, 120 S.Ct. 2097, 2108 (2000).  “In appropriate circumstances, the trier of fact the jury] can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”  Id.

“Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, since the employer is in the best position to put forth the actual reason for its decision.”  Reeves, 120 S.Ct. at 2109.