“You can’t prove anything, detective. All you have is circumstantial evidence!” How often do we think of that movie cliché whenever we think about circumstantial evidence? We think of it as inferior to eyewitness or other direct evidence. The fact is that circumstantial evidence can be very powerful and is the primary way that discrimination cases are proven.
If, when you go to bed, there is no snow on the ground, but when you wake up there is a foot of snow outside, you can conclude that it snowed overnight. That is circumstantial evidence. Now suppose I told you I was up all night looking out the window and I swear it didn’t snow. That is direct, eyewitness testimony. What are you going to believe; the direct or the circumstantial evidence?
Many times I have heard clients say, “I know everything I told you is circumstantial, but…” But nothing. Employers are rarely stupid enough to keep records of their discriminating actions. Therefore, courts have created a formula for establishing your case through circumstantial evidence.
For example, you are a woman who has been working in the same job for ten years. You have just been laid off, even though your manager kept several men. Do you have a case? Under the court’s formula, we would look at four initial factors. (1) Are you in a protected category? (Yes, gender). (2) Are you objectively qualified for your position? (Yes, you’ve been doing it for ten years). (3) Did something bad happen to you? (Yes, you were fired). (4) Are the circumstances consistent with discrimination? (Yes, men were retained and you were let go). If all the answers to the initial factors are yes, then the employer has to articulate a non-discriminatory reason why you were let go, such as you scored the lowest on an evaluation. You would then have to show that the reason was a lie. Were discriminatory comments made? Was everyone evaluated under similar conditions? How many women were laid-off as opposed to men? These are just a few ways that discrimination can be proven by circumstantial evidence.
If you think you have been discriminated against, but don’t think you have a case because all you have is circumstantial evidence, think again. To follow the movie cliché, didn’t the guy taunting the detective about circumstantial evidence usually get caught?