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Even if direct evidence of discrimination may not exist, circumstantial evidence can be persuasive

Employers mistakenly believe that they are immune from liability unless the employee can point to direct evidence of discrimination, e.g, racist comments or symbols in the workplace, actual physical touching in a sexual harassment case.  The United States Supreme Court forcefully rejected this notion back in 2003 in Desert Palace, Inc. v. Costa, 539 U.S. 90.  “The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”

In Desert Palace, the plaintiff’s circumstantial evidence of sex discrimination in a series of disciplinary actions ultimately ending in her termination sufficed to prove discrimination.  The plaintiff, who was the sole female warehouse worker and heavy equipment operator for a Las Vegas casino, presented evidence that she had been subjected to “stalking” by one of her supervisors, harsher discipline than men for the same conduct, less favorable treatment than men in the assignment of overtime, stacking of her disciplinary record, and sex-based slurs from her supervisors.  Although all of this evidence was circumstantial, the Court found that it provided a sufficient basis for a reasonable jury to conclude that sex had been a motivating factor in the employer’s decisions to discipline and terminate her.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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