The Employer’s Legal Advisor

Direct Evidence (or the Lack Thereof)

Plaintiffs’ attorneys can seldom provide direct evidence of unlawful motivation on the part of the employer. This inability compels plaintiffs’ attorneys to resort to three forms of indirect evidence. The first two (the preferences of most plaintiffs’ attorneys) are disparate treatment and adverse impact. The third form is related to the disparate treatment theory and alleges that the reasons given for discharge are but a pretext designed to conceal the true motive, which is an act of unlawful discrimination. In all cases, the plaintiff’s attorney will do all that he can to claim or show that the employer was unfair in the treatment of his client.

Pretext is shown by demonstrating that the reason given for ...