Intro: 00:01 Human resources, employee relations, the legal department are aligned against you. Your employer has trained for this day, the day you've become an expendable number at work. There are robust laws that may protect you, but unlike the company you've not been drilled on how to wield them. You're playing catch up. There are pitfalls to avoid and countermeasures to deploy that may save your job or puts you in the best position to negotiate a favorable settlement. Minutes matter, your words and actions matter even more. The Walking Papers podcast offers the first foray into learning how to turn the tables when you've been targeted at work. Knowledge is power. Let's get started.
Robert Ingalls: 00:45 Welcome back to another episode of The Walking Papers podcast. I am your host Robert Ingalls. I am here with attorney Josh Van Kampen. How are you today, Josh?
Josh Van Kampen: 00:55 I am doing pretty well.
Robert Ingalls: 00:56 All right. The title of today's episode is you want me on that wall, you need me on that wall. How to prove your discrimination case without Colonel Jessup admitting he ordered the code red? Tell us about these clever episode titles, Josh.
Josh Van Kampen: 01:13 Well, I picked that one because I've always wanted to have that moment as a lawyer and be Kaffee and a discriminatory decision maker to admit that they basically discriminated against someone, and I still hadn't been able to do it.
Robert Ingalls: 01:29 Yeah. I never got that damn right, I did moment in my career either.
Josh Van Kampen: 01:32 Yeah, no. I think I'm 21 years in at this point. I should have been able to score that by now. But in all seriousness, it illustrates our reality in employment discrimination cases, which is that there are no Colonel Jessup code red moments really. So when we're about to tackle and to try to prove that a discriminatory event happened in the workplace, there's never an admission for it. So it's inherently a challenging thing to do.
Robert Ingalls: 02:03 Now, there aren't a lot of plaintiff's side employment lawyers in Charlotte or really any other city. Why is that?
Josh Van Kampen: 02:12 Well, because we're having to prove intent. As I was thinking about how to teach the listeners about this, it's like, for example, in a murder situation, the act of the murder itself, if you are proven to have murder someone you're guilty regardless of what your motive is, you're guilty of the murder. It may be depending on what degree, is it a manslaughter, is it involuntary manslaughter? Depending what is in your head. But the murder, the proven murder itself is itself a violation of criminal law. In the employment law setting, the mere fact that a termination occurred is of no moment. That doesn't mean it's illegal. We have to prove what was in the decision maker's head in making that, that termination decision for example. So it's a heavy lift. A lot of lawyers would rather analyze an accident scene than a termination scene.
Robert Ingalls: 03:04 Sure. How do we go about proving that discrimination though?
Josh Van Kampen: 03:08 Well, fortunately it's actually not as hard as it sounds. So in any, under all the employment discrimination laws, the standard is because of, so we have to prove that a termination occurred because of someone's protected status, for example, because they engaged in some sort of protected activity. Fortunately because of does not mean the only reason. So we don't have to show that a particular decision maker fired an employee only because they were 55, not only because it can be ... It just has to be an important enough factor in combination with other things to tip the scale in favor of a termination.
Josh Van Kampen: 03:51 So for example, we can concede that a manager may have been considering our client's performance in deciding whether or not to terminate them. Maybe there were some performance issues. But if we can prove that it was our client's age being over 55 that tipped that scale, even if it was only the straw, that's enough for us to prove discrimination. Then the other thing we have going for us in comparison to what the burden of proof is in the criminal setting, which is beyond a reasonable doubt, in the civil setting, it's called preponderance of the evidence. So preponderance of the evidence is only 50.0001% of the evidence.
Josh Van Kampen: 04:36 So whenever we're educating a jury about what that means, we're literally using our hands and saying like, "This doesn't need to be decisive. Our evidence doesn't need to be decisive, not even close. It just has to be that 50.001% of the evidence." So that is a hurdle that you can get over on a good case. Then finally, the United States Supreme Court in 1973, there's a landmark decision called McDonnell Douglas v Green. I promise to the listeners, I'll never site another case. I'm already-
Robert Ingalls: 05:13 Sometimes it's important.
Josh Van Kampen: 05:13 I'm already regretting it, but this one is literally in the legal parlance. So what the Supreme Court recognized in that case is that discrimination when it occurs, it's not over. There's not going to be a smoking gun overwhelming majority of the time. So there are two ways to prove discrimination. There's direct evidence of discrimination, which we're going to talk about first. Then there's indirect discrimination. So when we get to indirect discrimination here in a couple of minutes, the good news is even without a smoking gun, the Supreme Court has laid out a framework to prove discrimination. But let's start first and talk about direct evidence of discrimination. That's rare to have those, but we can start there. So direct evidence of discrimination is essentially an admission by the person who decided to terminate an employee that they considered whatever protected category there is, so.
Robert Ingalls: 06:09 Is that something that you see frequently where you get these admissions?
Josh Van Kampen: 06:13 I've only had one case where a court determined that there was direct evidence of discrimination.
Robert Ingalls: 06:20 So no.
Josh Van Kampen: 6:21 So no. But you know what, it is encouraging for the listeners here though, is that in that case, largely it was a he said, she said. So my client testified to a conversation that occurred in a termination meeting where a statement was made about her perception of his limitations given a disability and that she thought that he would do better in a less demanding role. Now she swore in her deposition, she didn't say it, but my client said she did. The court credited my client's account of that conversation that was direct evidence because it was by the decision maker and it was about the termination decision that was being challenged in the lawsuit.
Josh Van Kampen: 07:08 Where people get a little overexcited about their evidence sometimes is where the decision maker has made a discriminatory comment but maybe not about them. So let's say there was a supervisor who use the N word toward another employee and let's say it was even six months before the termination. That's certainly evidence of a discriminatory animus. But that wasn't used in the context of explaining the termination decision itself. So that's what's called circumstantial evidence of discrimination. That's not direct evidence because it's not directly tied to the termination decision itself.
Robert Ingalls: 07:48 You mentioned indirect evidence. What does that look like?
Josh Van Kampen: 07:50 Okay, so an indirect evidence, which like you were saying, Rob, 95% of cases fall in this rubric. We're are using this McDonnell Douglas burden shifting model and there are three phases to it. So the first phase is a where the plaintiff has to establish what's called a prima facie burden. That's a Latin for based on first impression or something that's accepted as true right off the bat. So hopefully the listeners think I'm smarter than I am because I rolled a little Latin there. I think I summarized it accurately. But then getting back to these elements. So what does the plaintiff have to prove in this prima facie phase? It's just, first of all, you're in a protected group. So from maybe you're African American or Latino. Even I want to ... People that are white and are listening here understand that just because you're white doesn't mean you're not protected from discrimination. You are. You're supposed to be held to the same standard as an African American, for example. So race discrimination across the board is unlawful.
Josh Van Kampen: 08:58 So are you in a protected class? Did you suffer an adverse action? That's a legal term. But really what that means is has something significantly bad happen to you? I mean, so usually that has to be some sort of loss in pay. Maybe you were demoted, maybe you weren't promoted, you were fired, a written warning that resulted in you not getting a bonus for example. Then you have to prove also that you were meeting the employer's legitimate job requirements. Doesn't mean you need to be a superstar. It just means that if you look at the basic job duties, were you able to do the basic job duties? Which is almost always a yes. Then you just have to come forth with some sort of a little bit of evidence to suggest that you might've been subjected to a double standard.
Josh Van Kampen: 09:41 So for example, let's say you were fired, you're over 40 and there were four people on your team that weren't fired and they were all under 40. There, are you able to establish that there was somebody outside your class who received preferential treatment? So point is on these prima facie elements, they're not supposed to be hard to prove and so the overwhelming majority of cases, this prima facie element is established. Then it switches to the employer and the employer has to establish a "legitimate" nondiscriminatory reason. So let me boil that down for you. It basically means any reason. So I am serious and saying that an employer could justify a termination decision by saying that they believed the plaintiff was a devil worshiper. It could be complete BS and that will be enough to satisfy the employer showing.
Josh Van Kampen: 10:35 In other words, they employer just has to come forth with some reason, any reason. Then at that point it shifts back to the plaintiff and the plaintiff now has to prove that the employer's reason for the termination is "pretextual", so pretextual is a legal term of art. So let me just translate that for you. Basically what that means is that that the jury thinks that the employer's reason for the termination is fishy, that they don't it.
Robert Ingalls: 11:02 That sounds like that's probably one of the harder things to do.
Josh Van Kampen: 11:05 On the pretext showing for me, I actually have so much fun proving pretext. Because nine times out of 10, the cases that we take to a jury or in court, we're very confident that the employer made up the reason for the termination. You're like a hound dog, just chasing down and exposing that this really wasn't the real reason for the termination. So I describe it as poking holes, so the employer just put this as their story and then we poke holes in it.
Robert Ingalls: 11:35 So what are some of the better ones you've seen?
Josh Van Kampen: 11:38 I haven't had like the shoe in where they said that it was a devil worshiper reason.
Robert Ingalls: 11:42 Right. That one would be great.
Josh Van Kampen: 11:43 Yeah. Even though they can come up with a ridiculous reason. Usually they come up with one that at least sounds okay. Then we get to attacking it. So how do we attack it? One is, in other words, just translating, how do we establish that this reason is not believable? Well, one is shifting stories. So a lot of times in the moment, the manager will decide, have a paper trail that they fired the employee for X reason, okay? Then we write a letter and then they get talking to the legal department and they decide that that's a pretty flimsy reason. So now they're like attaching ornaments and stuff to the tree to try to dress it up and make it more defensible. Well, that change in the story, that decorating of the tree is, it can be evidence of pretext because if you have nothing to hide, then why are you changing your story?
Robert Ingalls: 12:39 Right. Why are you adding things to it.
Josh Van Kampen: 12:41 Right. Yeah, exactly. Sometimes, I've also had it where managers, it's always fun when the managers start pointing fingers at each other and this will literally happen where they'll point fingers and be like, "Oh, no. It wasn't my idea to fire your client. It was this other person's idea." So where any inconsistency in the employer's testimony about a termination can be evidence of pretext. Another one is, let's say it's a conduct termination. So there needs to be an investigation into whatever sort of misconduct supposedly occurred and they conduct a ham-handed investigation where they only talked to like two people and there are five witnesses, for example. Or human resources investigated but they didn't follow their own procedures to document the witness interviews. The inadequacy of an investigation can be evidence of pretext.
Josh Van Kampen: 13:34 A trap that a lot of employers fall into too, and with a termination is they try to couch it as a performance termination, but then there aren't documents to support it. So let's say the company has ... You're supposed to be conducted evaluations annually and they don't, they forgot to conduct like two years in a row and now the employer is saying, "Oh, well, there were these performance issues in those two years." Yeah, but you didn't document it. You didn't follow your policy. So and that's why you see some employers almost over paper files because they're feeling like they need to do that. That's another example. You can also ... Remember we talked about discriminatory comments earlier. You can heap those. Basically, you can heap virtually any piece of evidence on top, in establishing pretext.
Josh Van Kampen: 14:20 It can be statistical evidence, discriminatory evidence, and then what I'll call like fishy evidence. Then finally double standard. So can we establish that there were people outside of your protected category who were treated more leniently than you? If there are, and a lot of times there are, that's a real hurdle for an employer to try to get over.
Robert Ingalls: 14:42 Sure. So I know that frequently people generally when they walk in your office kind of have one burning question. That is, whether I've been discriminated against at work or whether it's led to a termination, do I have a case? What should they be looking for? What do you walk them through there?
Josh Van Kampen: 15:04 Well, I always start in evaluating a case, looking for what I call low hanging fruit. So let's look at your, the decision makers in your termination. Are the decision makers and your termination outside of your protected group? So if I'm representing an African American plaintiff and they were fired by three managers, two of whom are African American, that's ... I'm not say race discrimination can occur in that context, but it makes it harder. Whereas if we have an entirely white chain of command in that scenario, that's a low hanging fruit, good thing to see. Then looking at your replacement. So let's say you were replaced by somebody outside your protected category, especially somebody who wasn't as qualified as you, doesn't prove discrimination per se, but it's a low hanging fruit that I like to see there.
Josh Van Kampen: 15:55 Kind of a low hanging rotten fruit that we want to try to avoid is where the person who has fired the employee also hired them, close in time to the termination. In other words, it's hard to prove discrimination where that person hired, for example, somebody over 40 and then a year later they're fired and they're 41. Doesn't mean we can't prove it, but that's a poisonous fruit where we don't want to see on the tree. Once you move beyond the low hanging fruit, for me, I'm focusing on my fishy meter and I think most listeners can also apply that in general, but it's really a highly technical determination in evaluating all the evidence to determine whether or not you have a viable case.
Robert Ingalls: 16:43 All right. We have covered a lot of ground here today and that brings us to our pitfalls to avoid and countermeasures to deploy section.
Josh Van Kampen: 16:52 So on countermeasures, returning again to what we talked about, which is maximizing your opportunity to marshall your evidence while you're an employee. When we talk about fishiness for example or pretext, one of the best ways to prove that is double standard. So if you are chronicling and keeping track of your peers and their performance or their conduct and they're getting free passes as you know that you're being held to a higher standard and you can chronicle that by day, that's gold. Usually, because I don't want to be arguing after the fact, just in general that Joe Schmoe did the same thing, where you're able to establish it on a day to day basis, that's huge. Same thing goes with just emails and let's say calendar invites. Just any more paper you can give your lawyer frankly the better.
Josh Van Kampen: 17:45 Then the last thing is kind of the Hippocratic oath that doctors take, which is do no harm. It is critical that the listeners do no harm to their cases as the discrimination and targeting is occurring. So one of the ways that you can do harm, for example, is when you're being issued these disciplinary actions, you get angry, you storm off, you backtalk your manager or your supervisor. These are the sorts of things that you're just giving the employer ammunition. I just can't emphasize enough that we need to keep our side of the street clean so that I or another lawyer can be effective for you.
Outro: 18:25 Congratulations for taking an important initial step and turning the tables at work. But this podcast is just an educational resource. It does not constitute legal advice and is no substitute for consulting an employment attorney about your unique situation before making legal decisions. Visit our website for more online resources and videos at NCemploymentattorneys.com or better yet, call 704-247-3245 for a free initial intake interview so Van Kampen Law can evaluate your case. Until next time, keep your head up and your wits about you.
