EEO LAW BASICS
CHAPTER 13
LITIGATION PRACTICES: A BASIC OVERVIEW OF CERTAIN EVIDENTIARY ISSUES IN EEO LITIGATION

Employment litigation may involve unique evidentiary issues. A comprehensive review of all potential evidentiary issues is beyond the scope of these Basics Program materials. Nevertheless, we highlight certain key evidentiary issues that arise with some regularity in EEO litigation.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Comparator evidence is the phrase used to refer to a common type of evidence that is proffered to demonstrate discrimination or the lack thereof, by comparing the treatment of the aggrieved plaintiff to the treatment of a non-class member person who is similarly situated in all relevant respects. For example, the female plaintiff may attempt to advance evidence that shows that a male employee who is “similarly situated” in all respects is treated materially better than she. On the other hand, the defendant employer may attempt to introduce evidence that a male employee who is “similarly situated” in all respects is treated worse or the same as the female plaintiff.

Much litigation exists regarding the definition of “similarly situated” and whether the non-protected class person is truly similar in all relevant respects. The basic issue is whether the comparison of the plaintiff to the other non-class member individual is a fair comparison, such that it would enable a factfinder to draw a relevant and reasonable conclusion regarding the comparison. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Statistics are sometimes used in EEO litigation as probative evidence of discrimination or the lack thereof. The U.S. Supreme Court has noted that “[s]tatistics showing [a protected class] imbalance are probative... because such imbalance is often a telltale sign of discrimination.” International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 340 n.20 (1977) (citations and internal quotations omitted). Whether statistics are useful will depend on the particular facts and circumstances. Id. at 340. Further, statistics may be rebutted. Id. Generally, statistical evidence that fails to account for nondiscriminatory explanations is not permissible. See e.g., Smith v. Xerox Corp., 196 F.3d 358, 371 (2d Cir. 1999) (granting the employer summary judgment where the plaintiff’s statistical evidence failed to account for nondiscriminatory explanations; court noted that the evidence “only showed that chance was most likely not responsible for the perceived” differential treatment).

Although statistics are most frequently present in class or representative actions, they are sometimes used in individual cases, as well. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Both Title VII and the ADEA contain bona fide occupational qualification provisions that enable an employer to make a lawful distinction based on the protected class provided that the distinction is a bona fide occupational qualification (“BFOQ”). Title VII’s BFOQ applies only to religion, sex, or national origin and only where the protected class is “reasonably necessary to the normal operation” of the “particular” business. 42 U.S.C. §2000e-2(e)(1). Title VII’s BFOQ does not include race or color. Similarly, the ADEA’s BFOQ applies “where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” 29 U.S.C. §623(f)(1).

Generally, whether the BFOQ defense is available will turn on whether the decision made on the basis of the person’s religion, sex, national origin, or age is based on an occupational qualification (i.e., “objective, verifiable” qualifications that “concern job-related skills and aptitudes”) that are “reasonably necessary” to the “normal operation” of the “particular” business. See International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991) (Title VII BFOQ case in which U.S. Supreme Court noted that:

a) the statutory wording of the BFOQ defense “contains several terms of restriction” that indicate that the exception only reaches special situations;

b) the statutory terms, “certain, normal, and particular” favor “an objective, verifiable” requirement; and

c) the most telling term is the word “occupational[,]” which “indicates that these objective verifiable requirements must concern job-related skills and aptitudes”); Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 416-17 (1985) (ADEA BFOQ case).

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Frequently, EEO litigation will involve the issue of whether allegedly biased remarks are admissible and probative. Whether the proffered evidence is admissible and/or probative will often turn on one or more questions, including but not limited to the following:

1) How clear (or ambiguous) is the statement?

2) How intense is the statement (does it tend to show bias, and if so, how strongly)?

3) Who uttered the statement?

4) Was the person uttering the statement in management, and did the person have direct or indirect power over the subject employment decision?

5) When was the statement uttered (and how much time has elapsed between the statement’s utterance and the subject employment decision)?

6) In what context was it uttered?

7) Did the statement refer to the plaintiff?

8) Was the statement an isolated incident or a stray remark? Alternatively, was the statement frequent in its nature and content?

9) Are there other indications of potential bias from the same person uttering the statement?

10) If the statement was not made by the decision maker, was it communicated to the decision maker?

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Under Title VII (following the Civil Rights Act of 1991), if an employer’s decisionmaking was based on a “mixed motive” – i.e., a legally permissible motive and an unlawful motive based on a protected class, the employer will be liable and the remedies include:

a) general injunctive relief (provided the plaintiff has standing to seek it);

b) entry of declaratory judgment; and

c) attorneys’ fees and costs.

In a mixed-motives Title VII case, the employer has an affirmative defense to certain aspects of relief (i.e., relief particularized to the employee). 42 U.S.C. §2000e-5(g). The employer has the burden of providing the mixed motives defense, i.e., that it would have made the same decision even if it had not taken the protected class into account.

Because the Civil Rights Act of 1991, which amended Title VII of the Civil Rights Act of 1964, did not refer to retaliation claims, there is an open question whether Title VII’s mixed motives provisions, including the affirmative defense, applies to Title VII retaliation claims. Some courts have held that it does not. See e.g., Kubiko v. Ogden Logistics Services, 181 F.3d 544, 552 n.7 (4th Cir. 1999) (Title VII’s mixed motives provision is not applicable in a retaliation claim).

Likewise, Section 703(m) of the Civil Rights Act of 1991 does not explicitly apply to the ADEA or certain other cases, such as whistleblower or other relation claims (e.g., First Amendment retaliation cases). Therefore, it is possible that these cases are still governed by the Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) rule. Under that rule, an employer may avoid liability by establishing that it would have taken the same action had it considered only lawful bases. The mixed-motive analysis is available only after the plaintiff establishes that discrimination “played a motivating part in an employment decision.” Id. at 251. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

On occasion, evidence that similar conduct has occurred may be proffered for different reasons. For example, the plaintiff’s counsel make seek to introduce evidence that there was similar conduct in order to show that the employer had notice that of a particular co-worker’s alleged harassment of other employees. As another example, the plaintiff’s counsel may seek to introduce “similar conduct” evidence to show a “pattern or practice” of discrimination. Whether such evidence is admissible and probative will depend on the jurisdiction involved and a number of factors including but not limited to the following:

1) the type of claim involved;

2) whether the incident(s) is (are) related;

3) whether the incident(s) of similar conduct violates the law; and

4) whether the alleged similar conduct has any relevance to and is probative of the subject claim.

In addition, the traditional rules of evidence may also affect the admissibility of the evidence. See e.g., Fed. R. Evid. 403 (whether the prejudicial effect outweighs the probative value).

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

In EEO litigation, either party may attempt to introduce the EEOC’s determination. For example, if the EEOC makes a cause finding, the plaintiff’s counsel may seek to introduce the EEOC’s determination as evidence that is probative of discrimination. Alternatively, the defense counsel may seek to introduce the EEOC’s decision if the EEOC failed to make a cause determination. Whether the EEOC’s findings are admissible will vary depending on the jurisdiction and whether the matter is tried to a judge or a jury. For example, the Eleventh Circuit has held that the findings are generally admissible in a bench trial, but that they may not be in a jury trial due to the risk of unfair prejudice. See e.g., Lathen v. Department of Children and Youth Services, 172 F.23d 786, 791-92 (11thh Cir. 1999) (discussing the admissibility of agency findings). Thus, it is necessary to research the law in the applicable circuit.

Nevertheless, certain documents submitted by either party in the agency process may be admissible at trial. For example, the employee’s signed questionnaire may be admissible as an admission or for impeachment purposes. The employer’s representations to the agency may be similarly admissible. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Rule 412(a) of the Federal Rules of Evidence generally bars evidence “offered to prove that any alleged victim engaged in other sexual behavior” or to show the “alleged victim’s sexual predisposition.” However, in civil litigation, the evidence may be admissible “if it is otherwise admissible” and its probative value outweighs any danger of unfair prejudice and harm. Rule 412(b). Rule 412(c) governs the procedure for admissibility of such evidence and generally requires, among other things, the party seeking to use it to submit a motion “specifically describing the evidence” and the purpose “for which it is offered[.]” Should a lawyer seek to have such evidence admitted, it will be necessary to comply with Rule 412(c).

Whether the evidence is admitted is within the trial court’s discretion. Considerations may include but not be limited to the following:

1) what the other behavior is and when it transpired;

2) whether the other behavior is probative;

3) whether the other behavior took place in the workplace or outside the workplace;

4) whether the other behavior was known in the workplace regardless of where it occurred, and if so, who knew about it;

5) whether the other-behavior evidence may result in confusion, may be a waste of time, and/or may cause a trial within a trial; and

6) whether the probative value of such evidence otherwise outweighs the prejudicial effect. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006