Circumstantial Evidence of Discriminatory or Retaliatory Motive by Employers

Categories: Employment and Labor Law

Proving a case of discrimination, hostile environment harassment, or retaliation is a difficult matter. Most employers, in this day and age, are wise enough to conceal unlawful motives that may be responsible for their disparate treatment of an employee. Proving that race was a motive in the decision, as opposed to the performance issues or other pretext asserted by the employer, often requires substantial reliance on circumstantial evidence.

Thus, in the retaliation context for example, we as employment lawyers will look for indicators of retaliatory motive everywhere we can find them. Obviously, it would be great if a supervisor would say to an employee “you know I’m writing you up because you complained that I sexually harassed you” or “you are being discharged because we don’t want any whistleblowers around here,” but that is unrealistic in most cases. Instead, you look at the timing of events, the way the plaintiff was treated in relation to other employees, whether the employer broke from established policy and procedure in the way the plaintiff was treated, and whether some legitimate business explanation can be offered for the treatment endured by the plaintiff.

Take a hypothetical case where an employee becomes injured on the job after five years of impeccable performance evaluations and absolutely no history of prior discipline at work. Suppose further that three employees have been caught stealing donuts from the lobby of the company, donuts placed their for prospective clients. Now assume that all three employees were given a verbal warning only.

Now imagine that a week after the employee files a workers’ compensation claim for the injury, the employer terminates them for taking a donut from the lobby. All of the objective indicators of retaliatory intent described above are present: (1) the employer fired the employee only a week after the injury claim was filed; (2) the employer had no legitimate business explanation for terminating an employee with impeccable job performance and no prior disciplinary history; (3) the employer treated the employee differently from other employees guilty of donut-stealing by imposing a significantly more severe discipline on the one whom had also filed an injury claim; and (4) the employer diverged from established practice and policy with regard to donut-stealing violations. The inference of retaliatory motive is relatively strong and the employee is likely to succeed on her claims.

Conversely, imagine the same employee had a three year history of repeated unexcused absences, had been written three times in the last year for this very offense, and had been caught stealing donuts fifteen times before the incident in question. Suppose further that the employee’s “injury” claim was only filed after the employee had been placed on suspension for the latest donut theft, pending a full investigation. Finally, suppose that the three other donut-stealing employees had been terminated on the spot. In this case, the employee has very little circumstantial evidence of retaliatory motive, the employer has perfectly legitimate motives for terminating the employee, and it appears the injury claim itself might have been a sham concocted post hoc by the employee to avoid further discipline. The employee’s likelihood of success is significantly bleaker.

Most cases, of course, are not so black-and-white, and all employment discrimination or retaliation claims require this sort of in-depth analysis of the facts an surrounding circumstances.

If you believe you are being discriminated or retaliated against unlawfully at work, here are a few steps you can take to protect yourself as much as possible:

The Triple-R Method:

  1. RECORD EVERYTHING:  Write down everything you can remember about what has occurred to you.  If you complained of some conduct you believed to be unlawful, make a note of how you complained, put that complaint in writing if you have not already done so, record when and to whom you complained, record whatever response you received, and record every instance of perceived retaliated you experience thereafter.  If you later need to pursue litigation, your employment lawyer will thank you for keeping diligent records and helping them prove the case at a later date.
  2. REMAIN VIGILANT:  Remember that the employer can defend your case on the grounds that you engaged in other conduct warranting discipline or disparate treatment.  Thus, you do not want to give them any excuse to punish you or mistreat you.  Make sure your performance is as good as anyone else in your department, that you violate no work rules or policies, and that you treat everyone around with you the utmost respect.  If your employer belittles or berates you, write it down and vent to your journal, but do not respond in kind.  Maintain the moral high ground and turn the other cheek, taking solace in the knowledge that you will win the case at a later date if you maintain your cool now.
  3. RETAIN A LAWYER:  A lawyer can give you critical guidance and feedback throughout this process, helping you decide what facts/incidents are legally relevant, what responses to give to your employer to various actions they may take or communications they may send, and when the time has come to pursue formal legal action because informal resolution has stalled out to an impasse.

Of course, we here at the Law Offices of Dustin Collier would love to hear from you and see if we are in a position to assist you.  If you would like us to review your case, please visit the “Contact Us” page.