They wanted to hire “Ken and Barbie.” What they got was a discrimination lawsuit instead.

Today, we will have a lesson on the differences between “direct” and “circumstantial” evidence of discrimination.

Plaintiffs may prove discrimination through direct evidence, circumstantial evidence, or both. Circumstantial evidence allows the factfinder to infer discrimination. For example, a company fires a black employee for sleeping on the job but doesn’t discipline three white co-workers who also get caught.

Direct evidence of discrimination is evidence where you don’t need to infer or presume discrimination. It’s just blunt and in your face. Stray remarks don’t count for much. Instead, courts consider the nature of the comments, their timing, who made them, and whether they relate to the challenged employment action.

Direct evidence is rare. It’s not that often that an employer tells an older employee that it’s firing her “because she is 65 years old.” But I read a case last night with some good examples of direct evidence.

Indeed, they were so blatant that the U.S. Equal Employment Opportunity Commission got involved and sued the employer on behalf of the employee.

The EEOC claimed the defendant, an apartment complex, fired the Hispanic woman because of her national origin. But what direct evidence did it have? Let’s read from the Fifth Circuit’s Opinion:

“In this case, viewing the evidence in the light most favorable to the EEOC, the evidence demonstrates clear discriminatory motive on its face without the need for inference. [One owner] expressed dismay at the fact that the office staff were “all Mexicans.” Both [that owner] and [a second owner] similarly expressed a desire to “change the demographic[s]” of the staff. Further, [the first owner] made his preference for a “white” staff known on multiple occasions. [He] also told [a supervisor] to hire a “higher class of individual with the look of Ken and Barbie” to replace [the plaintiff], which [the supervisor] understood as a hiring preference for those who are “petite, attractive, young[,] and Caucasian.”

Plus, the supervisor later admitted to a co-worker that the owners told her to fire the plaintiff because she was Mexican.

Indeed, the plaintiff was Mexican, ownership/management made these statements around the time of her termination, and the company followed through on their apparent racism.

That’s what direct evidence of discrimination looks like.

It will now be up to a jury to determine whether all of this actually happened.

Although, the defendant may want to settle the lawsuit first.

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In the meantime, click here and register for the next edition of The Employer Handbook Zoom Office Happy Hour: “Unions: Fad or Trend?” Jon Hyman will be my guest on Friday, October 14, 2022, at Noon ET.

Jon is a shareholder and director at Wickens Herzer Panza in Avon, Ohio. In that capacity, he is a Practice Group Leader of the firm’s Employment & Labor Practice Group and a member of the Firm’s Litigation Department.

With the increased popularity of organized labor and the National Labor Relations Board making it easier for unions to organize and employees to show union support, are labor unions having a renaissance?

Or is it just a moment?

We’ll answer these questions and many others, such as:

• Why have labor unions become so popular?
• How do employers unwittingly open the door to unionization?
• And what can proactive non-union employers do to keep their workplace that way?

We hope you’ll join us on Friday, October 14, 2022, at Noon ET. Click here to register.