Employment Law Overview

Circumstantial Evidence

It is very rare to have direct evidence of a discriminatory motive for an adverse employment action. Most cases involve the use of facts from which employment discrimination  may be fairly inferred. Such evidence is known as "circumstantial evidence" or "prima facie" proof.

For example, in an age discrimination case  if an employee in the protected age group (40 or over) is treated differently than his or her younger counter part for the same conduct (e.g. older worker's performance downgraded) this evidence may establish a discriminatory motive. In the context of race discrimination an example of how such circumstantial evidence is used is as follows: Two employees misuse their corporate credit card by charging personal items. One employee who abuses his card is White and the other is an African American. Both charge personal items in about the same amount, and it is each employee's first offense. Their supervisor terminates the African American, but gives the White employee a warning. Unless the employer is able to provide a believable non-discriminatory reason for treating the two employees differently a jury is entitled to infer race is a factor. In the context of sex discrimination, if a woman is given different standards to achieve or goals to meet than her male counterparts this may be evidence of a discriminatory motive.

Another way in which discrimination is proved is through circumstantial evidence known as the McDonnell-Douglas test. Proof of the following establishes a case based on this test:

1.  Employee is in the protected class (e.g. 40 or over, all races, both sexes);

2.  Employee performs his her duties in a manner which meets the employer's business expectations or is qualified for a position for which they apply;

3.  Employee subject to an adverse action such as termination, demotion, or rejected for employment or promotion;

4.  Employee replaced by someone less qualified who is younger, of a different sex or race.*

Proof of these elements leads to a permissive inference of discrimination.

Employment discrimination may also be inferred through a statistical analysis of employment decisions at issue.

* These examples are for illustration only. A court may require additional evidence depending on the type of discrimination involved and the jurisdiction in which the conduct occurred. For example, to prove a case of "reverse discrimination" (e.g. a male is treated less favorably than a female, a white employee is treated worse than a black employee) additional evidence may be required.

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