I hear it all of the time during consultations.  A potential client will tell me about the discrimination they have experienced at work.  They will describe how they were the only member of a protected class (age, race, sex, disability, religion, national origin, color) who applied for a promotion and that in fact, they were the only one qualified for the position, but they didn’t get it.  “You know,” they will continue, “I can’t think of anyone in my protected class who has been promoted to such a position.”  I will then ask this person why they think they were not promoted.  The person will then invariably say, “I think it was because of my protected class, but I can’t prove it.”

Another common situation concerns discipline and termination.  A potential client will talk about how they are the only ones who have been disciplined and then terminated for violations of certain rules even though everyone violates them or the person was never made aware of those rules.  The only difference between the potential client and the other scofflaws is that the potential client has a disability or is over 40 years old or is a woman.  Again, I will ask why they think that is.  Again, the potential client will say, “Because of my protected class, but I can’t prove it.”

I have good news for both of the above potential clients, what they just described is solid circumstantial evidence of discrimination and/or retaliation.  And even better, circumstantial evidence is just as good as direct evidence!

So, what are these two types of evidence?  Direct evidence is evidence that establishes a fact without any inferences.  For example, eyewitness testimony from a coworker who heard the boss say that he fired so-and-so because of her sex.  Direct evidence in employment discrimination cases is not very common.  Most employers and especially their HR departments know that it is illegal to come and directly state that an employee is being treated differently based on aa protected characteristic or protected activity.  That’s where circumstantial evidence comes in.  Circumstantial evidence is evidence that establishes a fact through reasonable inferences.  For example, seeing smoke establish the fact that there is a fire.  Seeing someone enter from outside with a wet umbrella can establish the fact that it is raining.  It is not direct evidence because in neither situation were the fact of the fire or of the rain directly observed or experienced.  Circumstantial evidence is much more common in employment law cases as illustrated by the two examples above.

In both state and federal court, juries are instructed that any fact may be established by either type of evidence.  Here is what Texas Pattern Jury Charge 100.8 says:

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witness who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.

Here is what the Fifth Circuit Pattern Jury Instruction 3.3 says:

Generally speaking, there are two types of evidence. One is direct evidence, such as testimony of an eyewitness. The other is indirect or circumstantial evidence. Circumstantial evidence is evidence that proves a fact from which you can logically conclude another fact exists. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial.

Notice what the federal instruction says, “the law makes no distinction between direct and circumstantial evidence.”  That’s huge!

So if you think you’ve been discriminated or retaliated against, what kind of evidence should you be looking for?  More likely than not you will need circumstantial evidence to prove it.  So look for how you were treated differently than others outside your protected class.  For example, are you written up for offenses that others are allowed to get away with?  Have supervisors and coworkers made any comments showing animus towards your protected class?  Have there been inappropriate jokes?  Are others outside your protected class given more benefits or opportunities?  Basically, whatever it is that makes you think you are being discriminated or retaliated against could be valid circumstantial evidence of discrimination or retaliation.  You should consult a Texas Employment Lawyer like those at Wiley Walsh, P.C. to discuss the facts of your case and the evidence you have.    

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh 

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.