Employees Alleging Discrimination Need Not Have Direct Evidence Of The Employer’s Discriminatory Mot
California’s Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to fire or discriminate against an employee because of the employee’s:
(i) age; (ii) disability (mental or physical) or medical condition; (iii) family and medical care leave; (iv) marital status; (v) genetic information; (vi) military or veteran status; (vii) race; color, ancestry, or national origin; (viii) religion; (ix) sex, including pregnancy, childbirth, and breastfeeding; (x) gender, gender identity, or gender expression; or (xi) sexual orientation. (Gov. Code §12940(a).)
In a recently published opinion entitled Moore v. Regents of the University of California (California Court of Appeal Case D067120, ordered published June 20, 2016; http://law.justia.com/cases/california/court-of-appeal/2016/d067120.html), the California Court of Appeal held that an employee’s disability discrimination lawsuit can proceed based on circumstantial evidence of discrimination.
Moore confirms that employees need not have direct evidence of discrimination to establish a discrimination claim. Direct evidence includes things like an inappropriate statement from a manager (“what are you, crippled or something?”) or an email from a decision-maker (“she's going to miss work now that she's sick, so let’s replace her”). Courts acknowledge that employees rarely have direct evidence of discriminatory motive. Instead, employees can establish their claims circumstantially, with evidence suggesting an employer’s stated reason for the employment action was a pretext for discrimination. This can include evidence of close timing between the employment action and notice of the protected characteristic or activity, involvement of a particular manager in the decision, an employer’s failure to follow its own policies and procedures, and any number of other circumstances that may lead one to conclude an employment action was based on an illegal reason.
Defendant claimed Plaintiff Moore was laid off due to a departmental restructuring, but Plaintiff offered circumstantial evidence that the employer may not have believed Plaintiff was healthy enough to continue in her former position. Further, the timing of the termination in relation to Defendant’s notice of Plaintiff’s disability suggested that something other than simple restructuring may have been at play. The Court held this was evidence from which a jury could infer the employer’s stated reason for the termination was not true. The case will now resume in the San Diego Superior Court and will head towards trial.
WHAT CAN EMPLOYEES LEARN FROM THIS RULING? All employees should remain vigilant to ensure they are not suffering discrimination at work based on a protected characteristic. If you fall victim to an adverse employment action or believe you have been discriminated against, consider whether there is direct evidence of discrimination like a statement from a manager that implicates your protected characteristic. Even without direct evidence, consider whether other circumstances suggest the employer’s decision was motivated by an illegal reason.
This article is not intended to provide the reader with legal advice, as such advice requires careful consideration of each person’s individual facts and circumstances, and careful application of the law to those facts and circumstances. Nor does this article create an attorney-client relationship with the author and any reader. Such a relationship will only come to exist upon mutual execution of a legal services agreement.