Thursday, September 8, 2011

The Power of Direct Evidence of Discrimination

The Seventh Circuit, just down the street from my offices here in Chicago, recently reinforced how  powerful direct evidence of discrimination is when it's alleged in an employment discrimination lawsuit. The concise description: once a court determines that there is direct evidence of discrimination in the record, pretrial disposition of the case becomes almost impossible.
On appeal,  the Court confronted a layoff situation where 2 Hispanic employees attempted to apply for open positions at a Kraft facility after they were given notice that their jobs were being eliminated. They sued, alleging race discrimination, when Kraft failed to hire either one of them. Their evidence of discriminatory animus included a claim that their supervisor prevented them from applying for new positions because they were Hispanic and that the Human Resources Department ignored their complaints about the supervisor's rejection of their applications. The employees also alleged that the supervisor assigned Hispanics to undesirable tasks, scrutinized Hispanic employees' performance more closely than non-Hispanics, and made racial references such as "I'm white and I'm right" to justify some of his employment decisions.
Kraft defended the claims primarily on the basis that other Hispanics were treated favorably, one of the open positions in question was actually awarded to a Hispanic employee and that other Hispanics were considered for the positions. It also argued that the Hispanic plaintiffs weren't hired because they didn't possess the same skill set as other applicants.
The District Court dismissed the case but the Seventh Circuit reversed. Its decision is noteworthy, because the Court states clearly that the presence of direct evidence of discrimination against a protected group means that how an employer treated other minority group members is irrelevant for purpose of determining if there is enough evidence to go to trial. Direct evidence of discrimination refers to evidence so strong that there is no inference needed that the employer is acting out of a discriminatory motive.  Once a particular decision is associated with direct evidence of discrimination, a discrimination claim cannot be countered pre-trial by inferential evidence of how other minority group members were treated. Or, as the Court put it:  "Title VII would have little force if an employer can defeat a claim of discrimination by treating a single member of the protected class in accordance with the law." 
The lesson here is not reassuring for employers.  Once direct evidence of discrimination enters a case-- e.g. allegations of statements by managers that they are taking a certain action because of race, gender or some other protected factor -- the case is almost always headed for a trial. The only preventative measures for this kind of claim are truly prophylactic, namely by educating managers and Human Resource professionals to be thoughtful and careful about what they say and do with respect to employment decisions, and to avoid even offhand references to race, gender, etc. when talking to employees about terms and conditions of the job.

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