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More than one way to skin a bigot: How to prove discrimination

More than one way to skin a bigot: How to prove discrimination

The Jim Crow era is over, and with it the flagrant bigotry that emboldened segregationist employers to post job notices that included the advice that "No coloreds need apply."

Unfortunately, the "no-coloreds" mindset not only lingers as the Ghost of Discrimination Past, but has morphed into strains that include "no women," "no Muslims," "no Cubans," "no etc."

Discrimination in the 21st Century workplace, however, is generally a lot more subtle, even though there are still managers who are crude (and stupid) enough to engage in racial and sexual slurs - or who, even if they would not make such racist or sexist statements, seem to think nothing about referring to older workers as "Gramps."

Courts, however, realized early on that passage of the historic Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 would cause anyone other the most legally-suicidal bigots to at least appear to clean up his or her act. Thus, direct evidence - evidence that, if believed, compels the conclusion that unlawful discrimination was at play in the employer's decision-making - is only one of three ways of proving discrimination.

The primary method of proving discrimination is a circumstantial evidence model that the United States Supreme Court began developing in 1973 and has been honing ever since. A third, less frequent approach uses statistical analyses of the workforce to reveal a pattern of treating older workers worse than younger ones, although that is generally coupled with another evidentiary approach.

The circumstantial-evidence test - distilled to its essence - involves setting out a series of events that makes the judge and jurors ask, "What's wrong with this picture?" The plaintiff has to prove, first, that he or she is part of a protected class, i.e., is of a race, religion, national origin gender, disability status or age that the employer disfavors: for that, he or she is "Exhibit Number One."

The next thing the plaintiff must prove is that he or she is qualified for the job - which means "minimally qualified." That can be shown by testimony that he or she fits the qualifications listed on the job posting, or, in the case of an existing employee, it can be inferred if the plaintiff is in a job that he or she has held for a long while.

The plaintiff also must prove that the employer took some adverse employment action. While adverse job actions generally are concrete - failure to hire, termination or lay-off, demotion or denial of promotion - they also include what one court referred to as "a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Constructive discharge - making an employee's life so miserable that no reasonable person would put up with it - provides as valid a claim as an actual firing.

Finally, the plaintiff must show some reason for believing that his or her race, religion, national origin, gender, disability or age "made a difference" - for example, replacement by an employee of a different race, gender or age, lighter discipline given to those employees for the same offense, or a statistical pattern of treating substantially those employees more favorably.

Sometimes the "made a difference" link can be established through the second-hand words of either sympathetic or unwitting managers. In one case, for example, the court admitted plaintiff's testimony that his manager stated that "it's a concern of some of the guys in New York that some of our people in their sixties are going to be replaced" and "there is a feeling in New York that, with the arrival of a new publisher, the people we have in their sixties will probably be replaced." In another, the court allowed the plaintiff to testify about what his supervisor told him while he was giving a personnel evaluation: the company "frowned on older people" and, therefore, "my raises wouldn't be as high as he would like them to be..."

Lawyers can be creative. There need be nothing rigid, mechanized, or ritualistic about how one makes a prima facie case through circumstantial evidence. The burden of making an initial showing of discrimination is not meant to be onerous. And, once it is done, it creates a presumption that the employer unlawfully discriminated against the employee.

To rebut that presumption, the employer must articulate, through admissible evidence, a legitimate, non-discriminatory reason for its action. Although the employer must only articulate, not prove, the reason, generalities or off-point reasons will not carry the day. While subjective reasons will suffice, they must be the kind on which the plaintiff's lawyer could cross examine: for example, a blanket "I didn't like his appearance" would fail. To stay in the game, management would have to offer such testimony as that "I did not like his appearance because his hair was uncombed and he had dandruff all over his shoulders," or "because he had his nose pierced," or "because his fingernails were dirty," or "because he came to the interview wearing short pants and a T-shirt."

Assuming that such a reason is presented, it then becomes the plaintiff's burden to show that the "reason" is nothing other than a pretext for discrimination. One way of doing this is to show that the reason given is simply not true. How? Show that the older worker is being measured by a different yard stick than younger workers. If an over-40 pharmaceutical representative, for example, is fired for not meeting her quota, show the jury how the 20- and 30-somethings who have lower quotas than she did, did not meet even those - and yet did not get fired. Side-by-side charts of a plaintiff's qualifications and experience compared to those of the favorite-flavor worker who got the job make a strong point. The way the employer has treated other workers of the plaintiff's same race/gender/etc. also is admissible. And since biased employers so often make up their reasons for doing what they did, questioning each person involved in the employment decision about how, why and when it was made allow the plaintiff's lawyer to put before the jury a half-dozen different versions coming from the mouths of a half-dozen different management witnesses.

The Supreme Court recently handed plaintiff's a potentially powerful weapon by requiring trial judges to make a case-by-case evaluation of testimony concerning how other supervisors within a company treat other, unrelated, elderly workers as a means of proving a corporate culture of age bias. Similarly, experts in social psychology can testify about stereotyping of workers based on race, age and gender.

If a jury believes that management is lying about the "legitimate, non-discriminatory reason," it is free to infer that the real reason was age discrimination.

A bonus for showing that management witnesses were lying about their reason for treating a plaintiff badly is simple: obvious lying angers jurors.

In summary, just because a boss does not use racist, ageist, sexist or etc.'ist statements does not mean that an employee cannot prove that he or she was the victim of employment discrimination. Of course, if the boss does so, it does make it easier. There is, however, more than one way to skin a bigot.

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