Workplace discrimination rarely comes with a “smoking gun.” Few employers or supervisors are brazen enough to openly identify a discriminatory reason for termination, demotion, or refusal to hire. Instead, discrimination is often disguised with lawful-sounding business justifications like restructuring, budget constraints, performance concerns, or the need to find a “better fit” with the organization. This can make proving discrimination claims challenging. Because direct evidence of discrimination is rare, attorneys often must build a case using circumstantial evidence.

Employees who have been discriminated against may worry that they will not succeed in their claim without direct evidence of discrimination. But as experienced discrimination attorneys, we know that most discrimination claims rely heavily on circumstantial evidence. Understanding how circumstantial evidence applies in discrimination claims and how to use it to build a compelling case is key to protecting your rights and holding employers accountable for their actions.

If you experienced discrimination, do not let the absence of a smoking gun stop you from seeking justice. The discrimination attorneys at Madsen, Prestley & Parenteau, LLC, have decades of experience representing individuals in discrimination claims throughout Connecticut.

What Is Circumstantial Evidence?

Evidence is any information that can be presented in court to make the existence of a fact more or less probable. The law recognizes two categories of evidence.

• Direct evidence is proof of the fact itself without the need to make an inference, such as looking outside and observing that it is raining.
• Circumstantial evidence is proof of a fact by making a reasonable inference. Looking outside and seeing wet pavement and people carrying umbrellas is circumstantial evidence that it is raining.

People rely on circumstantial evidence to make reasonable inferences every day. If you leave a plate of chocolate chip cookies on the counter and come back to find an empty plate and chocolate smeared on your child’s face, you do not need a confession to know what happened.

Discrimination claims work the same way. Employers rarely announce that they are unlawfully discriminating against an employee. Instead, we rely on inferences to paint a picture of an employer’s discriminatory motive.

Common Examples of Circumstantial Evidence to Prove Discrimination

Discrimination cases rarely rely on direct evidence. Instead, we trust people to use common sense to draw reasonable inferences from the circumstances. Examples of circumstantial evidence that can be used to prove discrimination include:

• Behavior patterns: Protected workers are consistently scheduled for less desirable shifts.
• Changing explanations: An employer gives different reasons at different times for firing a protected worker.
• Suspicious timing: A high-performing employee loses out on a promotion after disclosing that she is pregnant.
• Statistics: Data showing that members of a protected class are promoted to management or leadership roles less frequently than members of a non-protected class.
• Company policy: An employer may selectively apply policies in a way that harms protected workers.
• Discriminatory remarks: Comments made by a decision-maker can reveal a discriminatory bias.
• Treatment of others: Other members of a protected class are also mistreated.
• Deviation from company policy: Individuals outside of a protected class are given an opportunity to fix a problem, while members of a protected class receive progressive discipline.

Gathering Circumstantial Evidence to Prove Discrimination

If you believe you are experiencing discrimination, gathering circumstantial evidence can help build your case.

• Save your performance reviews, as they can provide insight into how your employer has evaluated your performance.
• Keep notes of every instance you were discriminated against, and include the date, time, and individuals involved, including witnesses.
• Save emails, text messages, and other communications that show you are being discriminated against.
• Keep a copy of your employee handbook that shows your employer’s policies.
• Save internal communications, including informal positive feedback, to show instances when your employer positively acknowledged your work or performance.
• Save copies of any disciplinary actions.

When in doubt, save information that you believe shows discriminatory treatment. Your attorney can determine which items are most helpful and use them to tell your story.

How Discrimination Attorneys Use Circumstantial Evidence to Build a Case

As skilled and experienced discrimination attorneys, we frequently rely on circumstantial evidence to prove our clients’ claims. We know that judges and juries are fully capable of using circumstantial evidence to identify a pattern of discrimination. We also know that circumstantial evidence is often just the tip of the iceberg. Additional information often becomes available through the discovery process that can be used to strengthen claims of discrimination until the inference of discriminatory intent becomes difficult to deny.

Circumstantial evidence can also lead to direct evidence. For example, during a deposition, an employment attorney may present circumstantial evidence to prompt an admission that a decision was, in fact, motivated by discriminatory intent.

The takeaway is clear: employees who have been targets of discrimination do not need a signed confession or an explicit statement of bias. Employment attorneys often rely on circumstantial evidence to prove a case of discrimination.

Contact the Discrimination Attorneys at Madsen, Prestley & Parenteau Today

To learn how the wrongful termination attorneys at Madsen, Prestley & Parenteau, LLC, can assist you, contact us online or call 860-246-2466 to schedule a confidential consultation at our Hartford or New London office.