The California courts have long recognized that fact that direct evidence of discrimination or retaliation at workplace is rarely available. Employers whose mindset and who actions are discriminatory will rarely admit it to other or to themselves and will of course almost never openly tell an employee: “I am terminating you because you are a black / christian / disabled / participate in the union activity”. Workplace discrimination and retaliation is usually subtle. It can and should be proven through circumstantial (indirect) evidence. While each type of circumstantial / indirect evidence might not be enough to meet the burden of proof, several types combined may well established a real risk for the employer to lose at trial and face a significant verdict for violation of an employee’s civil rights.
Here are five common, subtle and “circumstantial” ways in which employers engage in discrimination against employees:
1. Applying the Rules of Discipline Unequally. If you have been terminated for being tardy 3 times but there are other employees who are in the same or similar position and rank as you are, who are late to work more often than you are without facing any discipline, it might be evidence of the employer’s attempt to get rid of you for reasons other than tardiness.
2. Stating Untrue Reasons for Termination. The easiest justification for employee’s termination from the perspective of any employer is poor performance. However, if you have a history of good performance with awards, bonuses and other kinds of recognition for your work, and your “poor” performance is clearly fabricated and highly subjective, the employer is likely concealing the true reason for your termination.
3. Asking About Your Plans to Retire. Asking and “reminding” an older employee about his option to retire, discussing the benefits of retiring and otherwise encouraging a senior employee to abandon workforce is one kind of significant indirect evidence of age discrimination.
4. Not Investigating Complaints or Allegations Prior to Terminating the Accused Employee. If you have been accused of theft, harassing another employee, or other misconduct at work, but the employer puts no effort into investigating whether the allegations are true, it is possible that lack of investigation is part of a larger scheme to get rid of you for unlawful reasons that have nothing to do with the accusations.
5. Terminating an Employee Shortly After He Exercises His Rights. Although proximity in time alone is usually insufficient to prove discrimination, an employee with a good track record of performance, who gets demoted or terminated a few days or weeks after being injured, or asking for disability or religious accommodations, or complains about harassment, was likely retaliated against for exercising his legal rights.
The are more indirect ways in which employers try to discriminate and retaliate against employees, incorrectly believing that they will never face liability as proving unlawful conduct would be virtually impossible. A careful investigation of all facts, in addition to the testimony of witnesses, is effective in revealing the true reasons for adverse employment action against a certain worker.