San Francisco Employment Law Firm Blog

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.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Discrimination

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The main challenge of proving discrimination and discriminatory discharge at workplace is showing that the reason an employee was discharged is because of his/her belonging to one or more of the protected classes of employees because of his/her gender, sexual orientation, ethnic origin, disability, familial status, political affiliation, etc. It is not hard to show that an employee was terminated, but it's rarely easy to show why the same employee was terminated, especially when that employee's performance, at least in the subjective view of the employer, was less than perfect and could have been grounds for termination.

There is rarely a direct evidence of discrimination, such as blunt discriminatory statements, such as "We are firing you because we don't like blacks/disabled/republicans/married people. For obvious reasons, an employer will also almost never admit discriminatory motive in taking an adverse action against one of its employees. This means that in the vast majority of cases, the discrimination must be proven through circumstantial evidence, from which it is possible to infer that the reason an employee was terminated was discriminatory and thus unlawful.

The Second Appellate District engaged in a very important analysis of the various kinds of circumstantial evidence of discrimination in Johnson v. United Cerebral Palsy (2009). In that case, the court discussed a number of facts sited by an employee in support of her allegations of discriminatory termination and held that while each of the facts individually does not raise a suspicion that the aggrieved employee was discriminated. The court wasn't persuaded that just because the employer lied about the true reasons for termination Johnson, that termination was discriminatory, reminding that while discrimination is unlawful, lying about reasons for termination is not. The court was also not impressed with an employee argument that the mere timing of her termination after taking pregnancy leave shows discriminatory motive in her discharge, as it has been established that timing of termination alone is not sufficient to prove discrimination. The court further refused to interpret the words of employer "we are firing you because of what happened" in a way that the employee subjective understood them (being fired because of her disability claim). The second district found the "because of what happened part" to be far too ambiguous to prove any animus toward the worker because of her pregnancy, and not because, as the employer argued, her substandard performance.

Interestingly enough, the court held that although each of the above facts separately will not constitute substantial evidence of discrimination, when taken together, they do constitute sufficient evidence. The above circumstances, coupled with the fact that Johnson has never received a warning or counseling regarding her performance, in addition to declarations of other employees who stated that they were also terminated while on pregnancy leave was sufficient to allow the employee to have the opportunity to prove that she was terminated because of her pregnancy at jury trial.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Discrimination

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