Last month, I wrote about the IT industry's problem with its treatment of female and/or older employees. The obstacles that these employees face have been documented in the media and through our own firm's cases. But, do these anecdotal episodes mean that IT employers are engaging in illegal discrimination? The answer is not a clear cut one but depends on the circumstances.
While IT work environments may not be as congenial or friendly to female and/or older employees, that does not necessarily prove illegal discrimination. But as my colleague Glen Savits alluded to in an earlier post, it may be relevant circumstantial evidence to proving illegal discrimination. If women or older employees are excluded from social gatherings that are important to networking opportunities, that is some evidence of illegal discriminatory treatment. For sales employees, the assignment of undesirable territories and/or unreasonable quotas as opposed to other sales employees' assignments or quotas could also be circumstantial evidence of illegal discrimination. If younger or male employees are saved or protected in reorganizations or reductions in force while women or older employees are not where each employee had the same performance evaluations or reviews, that can be circumstantial evidence of discrimination. If all of a sudden, a female or older employee receives a bad performance review within a short time before an announced reduction in force or reorganization that sees that employee either being laid off or transferred into a position that is a demotion or one that is slated to be eliminated may also be (but not necessarily) circumstantial evidence of illegal discrimination. The salient point is whether women and/or older workers are being treated differently because of their status which in turn affects work performance and ultimately their job.
Of course, if the employer's decision-maker(s) have been heard or have written in memos or emails expressing discriminatory attitudes about a particular employee who is then fired, demoted or transferred to the Twilight Zone, that may be what is known as direct evidence of illegal discrimination. That is rare. But, again, as my colleague has noted, circumstantial evidence can be very powerful, sometimes even more powerful than direct evidence of illegal discrimination.