Proving Discrimination Through a Mosaic

    I’m a Crosby High School grad. I became a Bulldog in 1982. I can’t believe it has been that long.
    My history teacher freshman year was Mrs. Vassallo. I think she reads this column. She may remember assigning my class a project requiring the students to create a mosaic out of construction paper when we were doing a unit on Mesopotamia. It was a nightmare project. I still hate the word “mosaic.”
    Why am I telling you this story? Because last week I came across a case from the federal eleventh circuit court of appeals that talked about mosaics in the context of proving discrimination in the workplace.
    I still don’t like mosaics, but I can see how the idea of a mosaic can be useful in proving a discrimination case. I am open to embracing the concept almost forty years after I swore off mosaics.
    If you read this column regularly you know that I often say that proving a case of discrimination can be difficult. It is rare that there is a “smoking gun” piece of evidence that connects a discriminatory intention to an employment action.
    We don’t typically get a Perry Mason moment where the supervisor gets on the stand and under intense pressure admits to firing a plaintiff because she is Jewish or Black or old or a woman. Usually we have to connect a series of dots.
    Or as the Eleventh Circuit court said, we have to look at the pieces of the mosaic.
    There is a well-known legal standard used to evaluate discrimination claims. A plaintiff needs to show that she is qualified for the employment position and that she is in a protected class. So if she is a nurse, she has to show that she is qualified to hold the position of a nurse and that she is in a protected class, meaning she is Jewish, or Black, or over age 40, or a woman.
    Then she has to show that she suffered an adverse employment action, meaning she was demoted, suspended, or fired from her job. And finally she needs to be able to prove that the adverse employment action was a result of her membership in the protected class.
    Often this last element can be proven by showing that the plaintiff was treated less favorably than those not in the protected class, but that is not the only way to prove discrimination.
    According to the Eleventh Circuit and some other courts, a plaintiff can satisfy her burden on a discrimination claim by presenting a “convincing mosaic” of circumstantial evidence from which a jury could conclude by inference that the boss intentionally discriminated against the plaintiff when making the adverse employment decision.
    So what are the pieces of a “convincing mosaic?” According to the Eleventh Circuit court, a plaintiff can show a “convincing mosaic” by presenting evidence of suspicious timing, ambiguous statements, multiple explanations for the employment action, conflicting testimony, or off-hand comments demonstrating a discriminatory intent.
    If there are enough pieces that create a picture of discrimination, then a jury can infer discrimination. I have often viewed the various pieces of information as bricks that when placed together form a wall of discrimination.
    But that is probably just my anti-mosaic bias. Thanks Mrs. Vassallo.

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