Proving discrimination in the workplace is always tricky. Unfortunately, there are certain facts that can make finding sufficient proof even trickier. In the majority of workplace discrimination cases, employers do not make their bias obvious. In other words, your supervisor is not likely to come and tell you that you are being fired because he doesn't think women can do the job. If he did, that would be considered "direct evidence" of discrimination and would make your case, pretty much, a slam dunk. Therefore, most discrimination cases must be proven with circumstantial evidence.
What is circumstantial evidence of discrimination?
Just like in criminal cases, when there is no "smoking gun," the defendant's guilt must be established through all of the evidence that tends to point to the fact of his or her guilt. In an employment discrimination case, this means showing that the employer's reasons for its discriminatory actions were not the real reasons. Some examples of facts that can be used to establish discrimination are:
- The employer's failure to follow its own policies
- Treating other employees who are not in your protected category better than you
- Using subjective criteria for making employment decisions
- Changing the stated reason and being inconsistent
But, just as there are certain facts that can help you prove discrimination, there are also some facts that will weigh against your case. For instance, if you claim you were denied a promotion, but the person who was put in the position was obviously more qualified than you for the job, those facts are not helpful to your case.
What is the "same-actor inference?"
Courts have begun to use the term "same-actor inference" to describe the situation where the decision maker accused of taking some discriminatory adverse action, was also the same decision maker who hired you. The employer's argument is that, if I tend to discriminate against certain people, why would I hire them in the first place? Indeed, if they did not want you in the organization, wouldn't they just deny your application? The same-actor inference, that a supervisor who hires an employee in a protected category will not later discriminate against that same employee, can be strong support for an employer's case.
So, same actors never discriminate?
Although this theory is a blow to employees, it is not to say that a so-called same-actor will never discriminate. In fact, not every court applies this inference to rule in favor of the employer. The Eleventh Circuit, whose opinions are binding in Alabama cases, has held that only the jury can properly consider this inference and determine whether it weighs against the plaintiff's claim. Other courts have also held that "same-actor" evidence, by itself, is not sufficient to prove the absence of discrimination.
If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Wrady Michel & King , either online or by calling us at (205) 265-1880.