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.