Well for starters, it is not easy. Many conversations with prospective clients start with an allegation of discrimination: “my supervisor is discriminating against me.” My follow up question is “can you identify the reasons or behaviors of your supervisor that leads you to believe that?” I don’t ask that question to see if the prospective client is lying, but instead to assess the strength of the case. Most people can read a room, pick up the vibes, and get a reliable sense of whether someone likes them or not. But a belief or speculation will not win a discrimination case before the EEOC. You must prove discrimination NOT just state that you believe it is happening. Below are common fact patterns to identify during your EEO case with the EEOC which may assist you proving discrimination and are applicable to all theories of discrimination including race, religion, disability, sexual orientation, reprisal, reasonable accommodation, age, gender, etc. Generally speaking, there are two types of evidence: circumstantial and direct evidence which we illustrate below in the context of discrimination.
1. Direct evidence
For EEO cases direct evidence is generally the most compelling. Direct evidence proves the fact being alleged. Examples of direct evidence include verbal or written communications containing slurs, derogatory language, racial epithets or a stereotype. Sometimes direct evidence may appear as a well-intentioned joke or an honest attempt to be funny. The joke could be verbal, stated during a meeting, you may have overheard it, sent over email or internal messaging system.
2. Circumstantial evidence
Circumstantial evidence is proof of a fact(s) that enables a person to infer the fact in question. A textbook example: a murder occurs, but no one witnesses it first-hand. However, a witness does observe a suspect running away from the scene with a weapon in hand. The fleeing of the scene and weapon in the hand is circumstantial evidence of the crime.
Fortunately, federal employees can prove discrimination before the EEOC with only circumstantial evidence. Listed below include common scenarios, behaviors, and job specifications that when unfavorably changed or applied to you may constitute circumstantial evidence of discrimination. It is helpful to compare your poor experience to those outside of your protected class. For example, your supervisor rudely says "no questions" during a team meeting in response to a question you tried to ask, but then 15-minutes later patiently answers a question from your coworker who is outside of your protected class.
- Workstations – office equipment, offices vs. cubicles, offices in undesired locations.
- Work privileges – remote work, parking spots
- Social – greetings, demeanor/body language, invitation to social events/lunch, taking breaks together.
- Job opportunities – job duties, task assignments, training, high visibility presentations, job coaching/mentoring.
- Performance-management – being coached for poor performance that other employees engage in without issue.
- Scheduling – preferred scheduling, granting vacation/annual leave, denying sick time requests or remote work.
- Scrutinizing/isolating behavior – picking on someone during team meetings, responding negatively to their questions/suggestions, using them as an example of an undesired behavior.
- Rude/abrasive communication – overly rude or abrasive communication and impoliteness.
- Promotion or job selection – comparing your skills and experience with the federal employee selected for the position at issue. Did the hiring official invest more time with them to set them up for the selection? Did your manager recommend someone but not you?
- Social media – check social media for any indication of discriminatory conduct.
Proving retaliation for EEO activity or requesting a reasonable accommodation:
You can apply the same logic and comparative evidence explained above to evaluate your treatment against other individuals that never engaged in EEO activity. Additionally, you can also leverage the comparative logic to analyze your treatment before you engaged in EEO activity to your treatment after you engaged in EEO activity. For example, your supervisor said hello to you every morning, until they learned of your EEO complaint. Then they stopped completely. That is circumstantial evidence of a possible retaliatory intent.
The key takeaways from this post is that you cannot prevail on a case of discrimination by exclusively relying upon your belief—no matter how right you may be. You also do not need direct evidence to win your EEO complaint of discrimination. To assess the strength of your case and identify possible pieces of evidence to support your claim—call us today to have schedule a free EEO consultation for your federal employment case.