Proof of Employment Discrimination

Proof of General Bad Conduct is Not Enough

Employment law seeks to define how people at work relate to one another. While there are laws of economics, and yes, even some economic laws, such as securities laws and antitrust laws, generally, the work of law is not micro but macro. Employment law focuses on what society has decided is most important, the macro-issues. It leaves untouched the micro-issues of how the business is run. But when an employer crosses the line by discriminating or harassing, the right to run a business anyway you want ends.

The macro-issues of employment law are discrimination, whistleblower protection, safe working conditions, workers’ compensation, and pay protections. About everything else an employer may do is mostly up to the employer. Whether you agree politically or not, the California Labor Code defines as the staring point of employment to be the right of either party to end the employment at will. Courts have historically defined this “at will” right to be one of arbitrary prerogative to quit or to fire. But that “hands off” judicial policy is limited to the micro-issues. When it comes to discrimination, whistleblower retaliation, failure to pay wages when and as due, failure to provide safe working conditions, or other listed statutory protections, the courts say basically: “at will” rule has no application.

Proof of Motive – Tough But Possible

The “why” of the employer’s decision to terminate an employee is like a gun that is never seen in the firing, only in the smell of smoke afterwards. Like all cases where the suspect is questioned, motive becomes central. The employer always, I repeat, always, has an alibi. The employee either a) just didn’t measure up; or b) was a terrible employee; or c) was a good employee, but we had to let her go as part of a lay-off.

There are two kinds of evidence to prove an employee was unfit for the job: objective and subjective. The objective evidence is more reliable generally, for example, dismal sales. But subjective factors can be persuasive if the testimony is overwhelming and credible that no one could stand the employee. Almost as surely as the alibi, an employer will round up a herd of fearful current employees to repeat the party line: I found it very difficult to work with the Plaintiff.

Does this mean that only nice people should win lawsuits? Sometimes a difficult employee is also a pregnant woman fired because she will be needing time off for her pregnancy. Sometimes a negative employee with an attitude is an African-American fired because she is African-American. Sometimes the employee who entered the wrong data on a bid proposal is 62 year-old employee is fired because a young boss perceives him as too old for the job. The point is that human motivation is a cocktail of emotions. How does a jury separate out bad management from illegal management?

The situation is reminiscent of the 2016 presidential election. It seems, according to political pundits, that the public viewed both candidates in an unfavorable light. But what if a voter saw the two candidates with equal disfavor, but decided candidate Clinton was less qualified because a woman? There are two considerations here: a) the voter is likely unwilling to see, admit or accept his gender bias, and b) the unconscious bias actually made a difference. That is, the voter’s bias was a “substantial motivating factor” in why he cast his vote for Trump. If there were 12 Trump supporters on the jury to decide the case for gender bias, they would, if following the law, have to find in favor of Clinton.

There are no perfect employers. There are no perfect employees. A jury deciding a case of discrimination or whistleblower retaliation, or perhaps a case of defamation or harassment will find more gray hats than white or black hats.

“Substantial Motivating Factor” — A Term of Art Simplified

What then is the Plaintiff’s burden of proof in a discrimination case? You’ll be surprised to hear that a) motive is a critical element of proof and that b) smoke will suffice. No one expects to see the gun fired. They may not even see the gun. But they are entitled to smell the gunpowder on the manager’s sleeve, even as he comes up with numerous alibis.

In Employment Law, the Plaintiff’s task is to prove that the “substantial motivating factor” of the decision to fire an employee was the illegal reason. That means there may be multiple concurrent reasons. But the fuel additive placed in the manager’s tank was an illegal purpose. That mixed fuel make the termination engine run.

Follow this formula [because it is the law]:

  1. The Plaintiff is in a “protected category,” for example over 40, or disabled, or a minority’
  2. The Plaintiff was qualified for the job, and as skilled for the work as those surviving.
  3. The Plaintiff was doing a reasonably good job, surely not perfect, but good enough;
  4. There was work to be done;
  5. The Plaintiff was fired.
  6. Someone not in the same “protected category” takes over the job, replacing the Plaintiff, or being the benefactor of some or all her re-assigned duties;

According to employment law, if the Plaintiff stops here in the proof, and the Defendant has fallen asleep during the trial, the Plaintiff wins. But the Defendant doesn’t fall asleep. The Defendant has alibis, and wants you to hear them. Stated differently, the Defendant wants to put the Plaintiff to the ultimate burden of proving that discrimination was the cause of the termination.

So now the documents and witnesses are paraded before the jury to show the Plaintiff was a) a scoundrel; b) an incompetent bum; c) a nice guy with few skills or no motivation; or d) a great guy who had to be laid off anyway. Remember, no employee is perfect. There will be documents and witnesses. Know too, a lay-off is an excellent smoke screen for hiding an illegal discrimination. We all know the stories of how older workers disproportionately bear the brunt of a downsizing.

At this point the burden of proof shifts back to the employee. It goes something like this: those reasons just given by the employer for my termination are not the true reasons. Here is evidence of a) how skewed and distorted the reasons are, and b) how others not in my “protected category” did no better than I, but are still working there. In the parlance of law, this is called proof of pretext, and if it is successful, the burden shifts back to the employer to reinforce the “dirt” on the employee. So it goes, back and forth, until the jury is instructed to reach a verdict. Notice that no where in this shifting burden of proof is the Plaintiff required to present direct evidence of an illegal motive. Smoke will suffice if the employee succeeds in proving the employer’s stated reasons for termination are not credible. Think of this pretext proof like this: yes, the employer had these other reasons, but these reasons were like fuel that wouldn’t ignite a decision. The catalyst was that the Plaintiff too old.

Proof of Discrimination: Conclusions

Bias is unconscious and illegal. Give that a moment of thought. We are tagging an employer with liability for an unconscious mental or emotional process. Give this secondary conclusion still another moment of thought. We’re placing a burden of proof on the employee to show that this unconscious process motivated a decision to terminate his or her employment. But it can be done if the jury understands that the burden of proof is not absolute assurance. A jury must be instructed by the court to understand that a juror can have less than full certainty. The jury is instructed to find only that the most probable explanation for the firing was illegal bias. We know real people in real work situations don’t go about bragging about bias. We will never hear that kind of testimony in court. The best an employee can present is indirect evidence, and the burden of proof is only to show that it is more probable than not [51% likely] that illegal bias caused the termination.