Evidentiary Issues

Courts tend to look at employment discrimination cases as being proved by either "indirect" or "direct" evidence. The distinction between the two kinds of evidence is relatively simple-with indirect evidence, a jury or judge has to make an inference that illegal discrimination is the motivation for the employment decision.

An example of indirect evidence would be something like a supervisor who regularly makes fun of older employees by referring to them as "dinosaurs", "mossbacks", or other derogatory terms. The inference that arises is that someone who doesn't care for older workers would allow that feeling to infect the employment decision-making process. Direct evidence, on the other hand, requires no such inference. A supervisor who says, "We have too many older workers here, we need to get rid of some so that we project a better corporate image," leaves no doubt about the motivation for subsequent employment decisions.

This becomes important because many employment discrimination cases are disposed of before trial, typically by showing that there is not enough evidence to make it worth putting a case before a jury. The process of short-circuiting a case like this is called "summary judgment." And cases where direct evidence is present can't be disposed of through summary judgment, ensuring that the employer will have to go through the time, expense, trauma, and significant risk of facing a jury with its version of events.

Direct evidence of discrimination is rare, however. You just don't have employers, or their agents, telling employees that the reason they're being let go, or that their job was eliminated, is because they're old, female, Catholic, black, white, etc.

Which leads me to this case. A law firm marketing director, with good performance evaluations, went out on pregnancy leave under the FMLA. While she was out on leave, the firm's executive committee determined to restructure the marketing department, and dominate the marketing director's job. As part of the termination process, the firm engaged its human resources director to consult with outside counsel to orchestrate determination. But after the now ex-marketing director was notified that she was fired, the human resource director told her that she had been let go because she was pregnant and took medical leave. The human resources director also allegedly said that there were a group of people that were discriminated against because they were pregnant or took medical leave, and named several names.

The human resources director's statements, which she repudiated under oath at her deposition, nevertheless counted as statements made by the firm or its authorized agent with respect to the marketing director's termination. As a result, the law firm was confronted with direct evidence that pregnancy and medical leave were the causes of her firing. The Seventh Circuit Court of Appeals reversed the lower court's grant of summary judgment in favor of the law firm, with result that the case is now headed for trial.

The lesson here is that direct evidence of discrimination is an incredibly powerful factor in employment discrimination litigation. Employers should do everything they can to refrain from any kind of communication indicating a protected factor motivated or caused an adverse employment action.