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How to Prove Discrimination When There is No Smoking Gun

More often than not, employees do not have direct evidence of discrimination.  Occasionally an employer will say or write something that clearly indicates an unlawful motive, but in most cases the employee tries to prove the “discriminatory animus” through various other methods.  Oftentimes lawyers refer to this as indirect evidence or proving discrimination through pretext.  As one court put it, “Resort to pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct.”  Binder v. Long Island Lighting Co. (2nd Cir. 1995) 57 F.3d 193. Proving pretext does not necessarily mean the jury must find the employer violated the law, but it is usually enough to get the matter to a jury, and then it is up to the jury to decide whether the employer violated the law.

Hundreds (if not thousands) of cases throughout the nation discuss various methods for proving pretext.  Kent Spriggs, in his book Representing Plaintiffs in Title VII Actionsidentifies (with appropriate case citations) the following 22 ways to prove pretext:  

  1. Statistical proof that a pattern of discrimination existed
  2. Direct evidence of discrimination
  3. Articulated reason is not the true reason
  4. Nonplaintiff selectee is less qualified
  5. Articulated comparison is not actually made
  6. Falsity of articulation stemming from inadequate opportunity to observe
  7. Change of qualifications or rules midstream
  8. If the employer departs from rules of law or its own regular rules or processes
  9. Drastic decline in performance
  10. Unequal discipline
  11. Catch-22: the employer is responsible for creating the problem that is supposedly the basis of the employer’s disqualification of employee
  12. Changing the articulated reason during the litigation
  13. Contamination: Falsity of one articulated reason impeaches other articulated reasons
  14. Excessive subjectivity or lack of factual basis
  15. Secret paper trail
  16. Surveillance as suggestive of pretext
  17. Employer’s treatment of other members of the same group
  18. Reason not reflected in performance evaluations
  19. Hostility toward retention of counsel
  20. Lack of proportionality
  21. Intent inferred from strong views of nondecisionmakers
  22. Absence of evidence supporting reasons

The second edition of Mr. Spriggs’ book came out in 1994, and Mr. Spriggs continued to update the book at least through 2004.  There is a book with the same name written by Robert E. McKnight Jr., which I believe is an updated version of the book, but I haven’t read it yet.

Understanding how to prove discrimination and how to avoid conduct that will lead to a discrimination claim is important for anyone representing individuals or companies in employment law disputes.  Representing Plaintiffs in Title VII Actionsis a valuable resource for any employment attorney.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
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