Epps & Coulson



Employees who are discriminated against by their employer usually do not have some overt action or smoking gun email to show the discrimination (or harassment or retaliation), but rest assured that the employer’s motives can be sussed out using circumstantial evidence. Juries love it when at trial the parties put the pieces together by circumstantial or indirect evidence for the jury to complete the puzzle that prove the claims.

So, in a discrimination claim, while an employer can favor or disfavor one employee over another, doing so because one or the other is in a protected class is illegal. What are protected classes?



•National Origin.


•Sex (including pregnancy, childbirth, and related medical procedures)


•Age (40 and older)Citizenship status.

To prove unlawful employment discrimination, an employee must prove four elements:

1. Membership in a protected class;

2. An adverse employment action;

3. Discriminatory animus; and

4. Causation

Direct evidence might be some email that points out an employee’s protected status and the intention to fire the employee because of that status: “I am firing you because you are too old to do this job.”  But that typically does not happen – there typically is not that type of smoking gun.

So, courts look to circumstantial evidence. First, employers often do not explain the basis for a termination, basis for not transferring, basis for not giving a bonus, or other adverse employment action. Documenting the reason(s) (provided they are not discriminatory reasons), often shatters the picture an employee seeks to describe. But, when the reason(s) given for the perceived adverse employment action do not connect or when the adverse employment action just does not make sense, the art of completing the puzzle by circumstantial evidence can be effective. For example, if an employer tells an employee seeking a new position that the employee was not awarded the new job or promotion because of some perceived experience lacking in the applicant, but then the actual person chosen does not have that experience, the inconsistency and contradiction can be the circumstantial evidence that shows the employer’s stated reason is not the real reason; the real reason is the discriminatory class status.

Showing the employer’s use of stereotypes can paint the discriminatory scene too. Describing a woman as “too aggressive,” “strident,” or “not nice” falls in this category. Describing a minority as “lacking deference to others” qualifies as the employee not knowing “your place.”  Some change in treatment after the employer learns of the protected class may qualify too (e.g., an employee revealing their religious affiliation, a pregnancy, a disability or even a national origin).

Excessive subjectivity in the reason can also be circumstantial evidence of unlawful discrimination. Take, for example, the sales executive who has surpassed all sales targets, but sees the normal bonus reduced for not showing “hustle” or not being a “team player.”  The list of circumstantial evidence can fill a museum, but courts typically see:

  • Shifting rationales – an employer gives different reasons at different times.
  • Disparate treatment – others outside the protected class are treated more favorably.
  • Discriminatory remarks – comments by a decision maker can be a “window into his state of mind.”
  • Negative treatment of others – others in the same protected class are also mistreated.
  • Statistics / workforce composition – e.g., the upper ranks of a company are closed off to a member of certain protected class, or the majority of those selected for layoff are in the same protected class.
  • Deviation from practice / policy – e.g., others outside the protected class are given a chance to fix a problem, or there is a progressive discipline policy that is ignored.
  • Failure to document – e.g., being fired for alleged poor performance, but without supporting documentation.
  • And microaggressions – seemingly innocuous statements, actions, or inactions or even expressions that all point to some discriminatory basis for treatment of an employee or class of employees.

While most employers are cognizant of overt discriminatory actions, it is these circumstantial bits of information that, when weaved together by circumstantial evidence that can describe the picture of a sinking ship.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is considered advertising under laws of some states. Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.


Attorneys admitted to practice in

California, New York, Colorado, Texas, and Oregon