Workplace discrimination is when an employer treats an employee or job applicant unfairly based on race, color, religion, age, or any other legally protected characteristic. The case against the employer will hinge on the evidence the protected worker (claimant) can provide to support the discrimination claim. Direct evidence in an employment discrimination case, such as an employer openly stating they are firing an employee because of their gender, is rare. Instead, a claimant usually must build a case against the employer from circumstantial evidence. For this reason, understanding circumstantial evidence can help you present a strong case against your employer if you think you’re being discriminated against.

Understanding Circumstantial Evidence

When direct evidence is not available to prove an employment discrimination case, Ohio courts look to circumstantial evidence. Circumstantial evidence is indirect evidence that shows discriminatory intent through what is sometimes referred to as a “mosaic” of patterns, inconsistencies, and comparisons. Together, this circumstantial evidence can prove that the employer’s stated reasons for an employment action are a pretext (a false excuse) to conceal bias. With enough circumstantial evidence, the fact finder (a judge or a jury) may conclude that an employer discriminated against an employee. Examples of circumstantial evidence that may help reveal bias through pattern, inconsistency, or comparison include:

• Behavior Patterns: Protected employers (such as older employees) are consistently scheduled for less desirable shifts while unprotected employees are scheduled for preferred shifts.
• Shifting Justifications: The employer gives different reasons at different times for firing a protected employee, suggesting concealment.
• Suspicious Timing: A high-performing employee loses out on a promotion after disclosing that she is pregnant.
• Comparative Evidence: The employer treats similarly situated workers outside the protected group more favorably.
• Statistics: Data shows that the company has a lower promotion rate for a protected group (women) than for an unprotected group (men).
• Retaliation: An employer fires or demotes an employee for reporting discrimination.
• Company Policy: A company policy may be discriminatory on its face (like a policy that requires employees to wear their beard in a way that conflicts with religious beliefs) or an employer may selectively apply company policy in a way that harms protected workers, such as for disciplinary procedures or promotion criteria.

While this is not a complete list of the types of circumstantial evidence, these examples show how circumstantial evidence of an employer’s actions may build a case that allows the fact finder to infer discrimination.

Circumstantial Evidence Builds Your Discrimination Case

If you think your employer is treating you unfairly at work, gathering circumstantial evidence is key. Ways to gather circumstantial evidence include:

• Keep a Journal: Every time you think you’ve been discriminated against, write down the date, the time, and the people involved, including witnesses.
• Save Communications: Any email, memo, text message, or other digital communications that feel discriminatory or “off” in any way. Keep a file of printed materials and digital materials.
• Keep the Employee Handbook: A print or digital copy of the employee handbook or manual shows the employer’s policies.
• Save Performance Reviews and Promotions: Employer evaluations provide insight as to how the employer regards your performance.
• Save Informal Communications: Any time your employer provides informal positive feedback, save the document. For example, a note that says “thank you for your hard work on this project” can show that your employer positively acknowledged your work ethic or performance.
• Save Disciplinary Actions: Any time you are written up at work, be sure to request and keep a copy of the written report.
• Collect Witness Statements: Ask colleagues who have observed or experienced workplace discrimination to provide you with a detailed written statement that includes the date, the time, and the people involved.

When in doubt, collect and save any information you think shows unfair treatment. The more tools you have to help you tell your story–including specific dates and times, documents, and witnesses–the better. At your consultation, your attorney will decide what is and is not relevant to your employment discrimination case. Your job is to focus on the facts and your side of the story. Further, no matter how minor an incident may seem, each incident gains significance as a pattern of discrimination begins to surface.

Legal Protections for Ohio Workers

If you think your employer is discriminating against you, you can file a federal complaint with the Equal Employment Opportunity Commission or with the Ohio Civil Right Commission. An employment lawyer can help you decide the best place to file your complaint and help you meet all the filing deadlines.

Confronting your employer about unfair treatment at work can be overwhelming, but you do not have to face your employer alone. Our team at Lalak LLC helps employees understand their rights and take action against their employer for unfair treatment. For guidance on circumstantial evidence in Ohio, contact us today for a consultation. We will work with you to protect your rights and to make sure your story is heard.