An accused sexual harasser thought he had smoking-gun evidence of race discrimination. As it turns out, however…

…the plaintiff missed the mark. Badly.

On the plus side, I get a blog post out of it.

Direct vs. Circumstantial Evidence

When employees lose their jobs and claim discrimination, there are two types of evidence they can use to prove their case: direct and circumstantial.

Direct evidence of discrimination is the smoking gun. Or, as the Eleventh Circuit Court of Appeals describes it, “the evidence that reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee, and, if believed, proves the existence of a fact without inference or presumption.”

That’s a lot of legalese there. So, try this example: “Hey you! Yeah, you with the penis and testicles! I’m firing you now because you’re a man.” That’s direct evidence of sex discrimination.

Hold that thought as I tell you about that white guy accused of sexual harassment who sued his former employer for race discrimination.

Was the termination from a smoking gun?

Spoiler alert: No, not even close.

During the male plaintiff’s tenure, female colleagues repeatedly complained that he engaged in inappropriate conduct and sexual harassment—including “compliments” about appearance, sexually charged language, requests for nude photos, and more. The employer met with the plaintiff several times, but the bad behavior continued.

Fed up with the plaintiff, the managers sought authorization from HR to terminate his employment. Human Resources subsequently sent a termination request form to the corporate office explaining that the plaintiff had violated the company’s sexual harassment policies.

Now, get ready for it. Here comes the so-called “direct evidence” of discrimination.

The termination form that HR completed included the plaintiff’s race and the demographics of his colleagues and identified potential comparator employees who had engaged in similar conduct. So, the white plaintiff argued that the race data on the corporate form meant his race motivated his termination of employment.

Would any reasonable person conclude that this EEO analysis proves discrimination? No, concluded the Eleventh Circuit:

The EEO Analysis does not meet—or even approach—this [direct evidence] standard. The form listed several categories of information in a neutral fashion, including [the plaintiff’s] race, as well as the race of the other employees. For this document to prove that [the plaintiff] was terminated because of his race, we would need to infer that it treated his race as a negative factor and that had his race been different [the decisionmaker] would not have approved his termination. Setting aside whether these inferences are even plausible, they are plainly inferences. And where inferences are required, evidence is not direct.

Case dismissed.

The More You Know.

Employment discrimination claims involving direct evidence, a/k/a the smoking gun, are the exceptions to the rule. The Eleventh Circuit noted, “If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence.” That’s why most plaintiffs must rely instead on circumstantial evidence to prove discrimination rather than “blatant” direct evidence.