San Francisco Employment Law Firm Blog
The main challenge of proving discrimination and discriminatory discharge at workplace is showing that the reason an employee was discharged is because of his/her belonging to one or more of the protected classes of employees because of his/her gender, sexual orientation, ethnic origin, disability, familial status, political affiliation, etc. It is not hard to show that an employee was terminated, but it’s rarely easy to show why the same employee was terminated, especially when that employee’s performance, at least in the subjective view of the employer, was less than perfect and could have been grounds for termination.
There is rarely a direct evidence of discrimination, such as blunt discriminatory statements, such as “We are firing you because we don’t like blacks/disabled/republicans/married people. For obvious reasons, an employer will also almost never admit discriminatory motive in taking an adverse action against one of its employees. This means that in the vast majority of cases, the discrimination must be proven through circumstantial evidence, from which it is possible to infer that the reason an employee was terminated was discriminatory and thus unlawful.
The Second Appellate District engaged in a very important analysis of the various kinds of circumstantial evidence of discrimination in Johnson v. United Cerebral Palsy (2009). In that case, the court discussed a number of facts sited by an employee in support of her allegations of discriminatory termination and held that while each of the facts individually does not raise a suspicion that the aggrieved employee was discriminated. The court wasn’t persuaded that just because the employer lied about the true reasons for termination Johnson, that termination was discriminatory, reminding that while discrimination is unlawful, lying about reasons for termination is not. The court was also not impressed with an employee argument that the mere timing of her termination after taking pregnancy leave shows discriminatory motive in her discharge, as it has been established that timing of termination alone is not sufficient to prove discrimination. The court further refused to interpret the words of employer “we are firing you because of what happened” in a way that the employee subjective understood them (being fired because of her disability claim). The second district found the “because of what happened part” to be far too ambiguous to prove any animus toward the worker because of her pregnancy, and not because, as the employer argued, her substandard performance.
Interestingly enough, the court held that although each of the above facts separately will not constitute substantial evidence of discrimination, when taken together, they do constitute sufficient evidence. The above circumstances, coupled with the fact that Johnson has never received a warning or counseling regarding her performance, in addition to declarations of other employees who stated that they were also terminated while on pregnancy leave was sufficient to allow the employee to have the opportunity to prove that she was terminated because of her pregnancy at jury trial.