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Circumstantial Evidence in Discrimination Cases

Circumstantial Evidence in Discrimination Cases. Plaintiffs who sue their employer for discrimination are often convinced (and often, correctly so) that some adverse employment action[1] done to them is the result of discrimination on the part of their employer. However, in order to prove a case of discrimination, a plaintiff's strong belief that that he or she was discriminated against is not enough. Rather, a plaintiff must offer direct or indirect evidence of discrimination. This article focuses on the direct method of proof.

Despite its name, the direct method of proof allows a plaintiff to prove his claim not only by direct evidence, such as admissions of discrimination, but by circumstantial evidence pointing to discrimination through a series of inferences. The Seventh Circuit has laid out three categories of circumstantial evidence that can be used to prove discrimination:

1. Suspicious timing of the adverse action against the plaintiff; ambiguous statements by the employer; an employer's conduct toward other employees in the same protected group[2] as the plaintiff; and "other bits and pieces" of evidence "from which an inference of discriminatory intent might be drawn";

2. Evidence that employees similarly situated to the plaintiff but are not members of the same protected group "received systematically better treatment"; and

3. Evidence that the plaintiff was qualified for a position, but was replaced by or passed over for the position in favor of someone not in the same protected group as the plaintiff and that the employer's stated reason for not choosing the plaintiff was pretextual.

Rudin v. Lincoln Land Cmty. College, 420 F.3d 712, 720-21 (7th Cir. 2005).

In the recent case of Abuelyaman v. Illinois State University, No. 10-2926, 2011 U.S. App. LEXIS 24616 (Dec. 13, 2011), the Seventh Circuit confronted the issue of circumstantial evidence. In that case, the plaintiff was a non-tenured professor who alleged that he was fired from the university because of discrimination against his Arab national origin and because he protested discrimination against other professors. However, the court found that he failed to present sufficient evidence of discrimination because he failed to show that similarly situated employees[3] were treated differently than him. Additionally, the circumstantial evidence he put forth was comprised of "conclusory allegations and self-serving affidavits, without support in the record," which the court said were insufficient. Id. at 28, citing Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002). Thus, a plaintiff putting forth circumstantial evidence needs to present something more than conclusions – he must put forth hard facts that point to discrimination.

[1] The Seventh Circuit has defined the term "adverse action" quite broadly, and not everything that makes an employee unhappy is an "adverse action" for purposes of the law. Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Rather, "a materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Fortier v. Ameritech Mobile Comm. Inc., 161 F.3d 1106, 1112 (7th Cir. 1998). Further, "mere inconvenience or alteration of job responsibilities" does not constitute a materially adverse change in an employee's terms and conditions of employment and is thus not an adverse action under the law. Id.

[2] "Protected group" means the characteristic that is the basis for the employer's discrimination or harassment. For example, Title VII protects people from discriminatory conduct based on their race, national origin, sex, and religion. So, if a plaintiff alleges that his employer discriminated against him because of his race, evidence of the employer's conduct toward other employees of the same race as the plaintiff may be useful circumstantial evidence.

[3] Usually, in order to show that another employee is "similarly situated" to the plaintiff, the plaintiff must show that both of them (1) "dealt with the same supervisor," (2) "were subject to the same standards," and (3) "engaged in similar conduct" but were treated differently, and there were no circumstances that would distinguish the two's conduct or the employer's treatment of the two." Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).

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