Suits In The WorkPlace

Direct Discrimination Discussion

    Employment discrimination cases are typically resolved on something called the McDonnell-Douglas model of proof.  This test, used by federal courts (and some state courts) in analyzing summary dispositions of employment cases (i.e. before trial) dates back to the early 1970s and is used to focus the court's inquiry on whether the disputed employment action, typically a termination or demotion, was actually based on a protected factor such as race, versus a legitimate business reason. 

     But there is another way of proving these cases - using something called a direct method of evidence, or "direct" evidence of discrimination.  Direct evidence is so closely linked to the protected factor that a jury can properly conclude that the employer intentionally discriminated against the employee, either because the evidence references the protected factor itself or because the evidence creates so strong a circumstantial inference.

     Direct method evidence cases are rare because direct evidence of discrimination is so obviously improper.  For example, it would be direct evidence of discrimination to hear a hiring manager say, "We can't take Employee A because we have too many women already in this office."  Similarly, circumstantial evidence under the direct method would consist of things like managers claiming that women needed to stay at home with their children, that women were incapable of working long hours because of home commitments, that women weren't as competent in the job as men, and similar remarks.  The point here is that once an employer has this kind of conduct in its workplace, it becomes impossible to dispose of a discrimination case on summary judgment.  The evidence itself is sufficient, with nothing more, to raise the inference that the employer is illegally discriminating against the subject employee.

     Such a case was decided recently by the Seventh Circuit.  The plaintiff claimed race and pregnancy discrimination, as well as retaliation, by her employer.  She alleged that her immediate supervisor said, "Mexicans cause problems and come to the United States to take jobs away from American people," and also said that she would not hire any more Mexicans because they cause too many problems in the workplace.  In addition, the supervisor provided significantly poorer working conditions for Hispanic employees with regard to things like job duties, breaks and shift assignments.  The employer made similar comments about the employee's pregnancy, which the court found established direct method evidence of pregnancy bias.  Finally, to round out the trifecta, after the plaintiff filed a complaint against the supervisor, the supervisor issued a warning notice that referenced the employee's protected complaint as a basis for the warning!  Again, clear direct method evidence that precluded summary judgment.

     Perhaps because of the audacity of the discriminatory conduct alleged in this case, or perhaps because it was unused to seeing these kinds of cases, the district court had awarded summary judgment to the employer.  The Seventh Circuit reversed saying, "[W]e fail to see how the district court granted summary judgment for the defendant."  No kidding.