C. Analyzing Individual Discrimination Claims Lacking Direct Evidence

• Jurisdiction: New York

C. Analyzing Individual Discrimination Claims Lacking Direct Evidence

Most employment discrimination claims are not based on direct evidence of unlawful motivation or disparate impact. Rather, claims of discrimination are usually premised on some form of circumstantial evidence. The most common form of circumstantial evidence is proof of disparate treatment by the employer toward the individual making the allegation and other individuals who are not in the same protected category. Circumstantial evidence can create the inference of discrimination subject to the employer demonstrating a non-discriminatory reason for its action.

For example, an employer may have a work rule stating that any employee who steals will be severely disciplined. If an African-American employee is fired allegedly for stealing, the firing may appear consistent with the work rule. But if the same employer caught a similarly situated white employee stealing and did not fire him or her, the difference in the penalty would create a suggestion or inference that the employer fired the African-American due to race. However, the employer can challenge...