by John P. Gause, Esq.
Published: Maine LAWYERS REVIEW, January 23, 2014
Reviewing hundreds of Investigator’s Reports and supporting files at the Maine Human Rights Commission starts to give you a pretty good idea of what it takes to prove unlawful discrimination. And I am not talking about abstract legal theories. I am referring to what is on the table when the fact finder is asked the simple question of whether defendant discriminated because of protected class.
Most cases require a showing that defendant did or did not do something to plaintiff because of her disability, sex, age, whistle blowing, or other protected class. There are two types of evidence. If boss says, “I am firing you because you are an alcoholic,” that is direct evidence that plaintiff was fired for being alcoholic. If boss says, “Oh, you are an alcoholic? By the way, you’re fired,” that is circumstantial evidence; you need to infer that the firing was because of the alcoholism.
Because most decisionmakers are not like the Pointy Haired Boss in Dilbert who goes around the office saying exactly what is on his mind, finding a written or spoken admission that plaintiff suffered an adverse action because of her protected class is unlikely. So we are left with circumstantial evidence to prove what the boss was thinking.
Although the sky is the limit when it comes to acceptable types of circumstantial evidence, some cases are better than others. Here is what they look like.
Incentive to Discriminate
The easiest cases to prove are those in which employer has an obvious incentive to discriminate on the basis of protected class. This is the most important factor in a case. If the reason jumps out at you, you are in good shape; if you have to dig for it, you have a long way to go.
This makes sense. Proving discrimination is not a matter of applying a formula mechanically: (1) plaintiff is a member of a protected class, (2) plaintiff was qualified for the position, (3) plaintiff was rejected, (4) defendant’s explanation for the rejection is false.
Rather, the investigator, judge, or jury needs a reason to believe the protected class motivated defendant. They need to know why boss would care about it. For example, he would be mad at a worker who called the Department of Labor on him to report illegal wage practices; he would be worried about hiring a pregnant woman as a cook at the start of the busy summer season; he would be reluctant to hire someone with a back injury to load and unload trucks; if he were a racist, he would not give an African American a fair chance.
Defendant’s incentive to discriminate sometimes rears its head through comments by decisionmakers. These are gold dust to a case. They are not the elusive direct-evidence-type comments that broadcast the reason for the employment action–these need an inference to show the connection. Unlike direct evidence, though, they do come up in the typical workplace.
Discriminatory comments in the successful Commission cases I saw ran the gamut. In one, respondent published a classified ad a week after firing complainant, who had bipolar disorder, that listed as a mandatory requirement for her position, “No mental cases. No exceptions.” In another, the general manager of a restaurant told complainant, a man, that he was not sure he could be the bartender because “most of our bar customers are male” (meaning they prefer women serving them drinks).
One employer told complainant, “you don’t get one; no red meat for you,” when handing out paychecks to other employees after complainant returned from a leave of absence for surgery. A manager asked complainant, who was seventy-one years old, when he was going to retire the week before laying him off and retaining a thirty-two-year-old. A bookkeeper, whose national origin was Russian, was asked during her job interview where she came from, what her nationality was, how long she had been in the country, and if she was planning on staying. She did not get the job, but she won at the Commission.
Sometimes, timing is everything. A respondent who takes action right after learning plaintiff’s protected class or activity tips its motivational hand.
In one case, employer terminated a driver the same day it learned he had an allergic reaction that would take him out of work. Another terminated complainant the same day she returned from a leave of absence for surgery. (It said it waited until she got back to be nice to her.) One winning complainant was fired two days after reporting sexual harassment. A truck driver was fired two days after he complained about having to drive a dangerously long route. A worker was fired a week after notifying employer she had been hospitalized for a mental breakdown.
Not that it has to happen within a day or two. Unlawful discrimination was found in cases where complainants were fired three weeks after informing employer of pregnancy, two months after complaining to management about improper MaineCare billing practices, and two months after returning from a one-month leave of absence for a heart attack.
Good Pretext Cases
Of course, even with gold dust and perfect timing, plaintiff has to show defendant lied. Because employers always offer nondiscriminatory reasons for their actions, plaintiff has to prove those reasons are pretexts for unlawful discrimination.
Pretext was shown most often when a performance problem persisted over a long period of time yet only became a problem after employer learned of complainant’s protected class or activity. For example, during a leave of absence for heart attacks, a sales manager was demoted to sales representative for performance deficiencies that had been ongoing but never pointed out. A clinician who had consistently failed to meet her target billing amounts was disciplined only after she reported concerns about improper MaineCare billing. A complainant was terminated for her inability to learn the job, but the decision came after employer received medical reports showing that she had mental disabilities that appeared to explain her difficulties.
Sometimes pretext was proven because it did not make sense that employer would do what it said. One respondent said it terminated a pharmacist for no-call no-show during a busy shift when her supervisor did not attempt to reach her to see where she was. A clinician was fired based on a client complaint without giving the clinician a chance to respond to the complaint. An agency fired complainant on the grounds of budget cuts when the amount of the cuts were significantly less than the savings associated with eliminating her position. A police department said it did not hire a woman for a dispatch position because she cried during the job interview (which complainant denied), yet it did not attempt to contact her references from her nineteen-year successful career as a dispatcher.
Employers sometimes shoot themselves in the foot with inconsistencies. One respondent’s first submission to the Commission said complainant was terminated for “lack of work.” At the issues and resolution conference, it said complainant was terminated because he was unproductive, spent work time job seeking, and was rude to customers. One employer said there were problems with an employee’s accuracy, yet his written performance evaluations often praised his accuracy. Another told complainant she was let go because the store was overstaffed, but it put up a “help wanted” sign shortly after her termination.
Lack of documentation is important in some cases, particularly when employer documents problems by others. In an age discrimination case, complainant was terminated for mistakes that employer had not warned her about in writing despite giving written warnings to others. Another complainant was terminated for undocumented performance problems when her only written performance review had been positive.
Other times employers are just caught in a lie. One employer said it refused to hire a complainant who was visibly pregnant during her interview because a prior supervisor had said she had bad customer service skills and a poor attitude. The prior supervisor testified that she said no such thing. Another said complainant’s termination decision was communicated before it learned of her disability, but telephone records showed that the decision was communicated afterwards.
In one case, employer admitted that it created a written performance counseling memo for attendance issues at least a month after the date on the memo. It said it created it the same day as another memo that warned employee about a dress code violation. The day of the supposed dress code violation, however, it had given employee the highest rating possible for appearance on her performance evaluation. The Investigator found both records were created after the fact to justify employee’s firing, which was motivated by her pregnancy.
But remember to put the pretext showing in context. Membership in a protected class and showing pretext, while perhaps legally sufficient, only go so far with the fact finder. To convince an investigator, judge, or jury to find unlawful discrimination, they have to believe the most important thing–that defendant had an incentive to discriminate.