One of the reasons that proving discrimination is such a challenging task in employment law is the fact that proving workplace discrimination requires showing a discriminatory state of mind. For obvious reasons, direct evidence of discrimination is rarely available, as few, if any, employers or supervisors would ever admit that they engaged in unlawful discrimination. Thus, eliciting circumstantial evidence (that evidence which inferred from other circumstances) can be crucial to a successful discrimination claim/lawsuit. This evidence includes demonstrating that the employee was treated differently from other similarly situated employees, certain remarks that would suggest hostility toward an employee because of his/her race, age, disability, religion, etc.
One of the very common ways in which employer try to deny allegations of harassment and discrimination by aggrieved employees and refute circumstantial evidence of discrimination and wrongful termination is by arguing that the reason that they treat the subject employees differently is because of their poor performance. It’s not uncommon for an employer who is trying to get rid of a certain employee to create a “paper trail” of performance issues by issuing warning letters, having counseling sessions with an employee, and take other unethical measure to mask the true reasons for the planned unlawful employment termination.
Rebutting the poor performance argument through documentation evidence and statements of co-workers with regard to the employee’s good performance is an important part of many, if not most, discrimination and wrongful termination claims, as it casts doubt on the employer’s true motives for discriminatory conduct and termination and suggest that the real reason for employee’s termination was other than his/her job performance.