Winning An Employment Lawsuit Is Hard. What To Know About Evidence

Generally speaking, civil lawsuits are inherently unpredictable and there’s always a chance of losing a case. But for workers who want to sue their employers for discrimination, the odds are especially challenging.

For example, in federal court from 1979 to 2006, plaintiffs in non-employment law cases won 51% of the time. But when the employee was the plaintiff in an employment discrimination lawsuit, they only won 15% of the time.

One of the reasons why plaintiffs in labor law cases struggle so much is because of the lack of convincing evidence. Yet on occasion, the employee has a “smoking gun” that can help them win. A recent settlement involving a restaurant and the U.S. Equal Employment Opportunity Commission (EEOC) demonstrates this.

EEOC v. Bourne’s House, LLC

Lauren Gerald applied for a position at one of Bourne’s House, LLC’s restaurants on April 18, 2019. She applied in person by meeting with Suzi Bourne, who was the manager and owner of Bourne’s House, LLC. At the end of the meeting, Bourne offered Gerald the job of hostess and told her to report to the restaurant the following day.

During this “interview,” Gerald was about 14 weeks pregnant. At no time did she mention her pregnancy to Bourne, ask for any pregnancy-related accommodations or indicate she had any work restrictions. However, Bourne quickly learned that Gerald was pregnant. So the same day Bourne hired Gerald, she sent Gerald a message on Facebook that said:

"Hey, I'm sorry to tell you this, but I'm not gonna be able to hire you. I didn't realize that you were expecting a baby. I'm afraid by the time I get you trained good, you'll have to be off to be a mom. I'm sorry."

After she was fired, Gerald was told she could return after her pregnancy was over. In August 2019, Gerald was still pregnant, but messaged Bourne on Facebook to express her continued interest in working for her.

Bourne responded by asking if Gerald had filled out an application. Gerald submitted an application form on August 23, 2019, upon which someone noted “pregnant” on top of the form. Gerald never received another job offer.

Gerald filed a complaint with the EEOC on December 24, 2019. The EEOC investigated the allegations and tried to get the parties to resolve their disagreement with informal conciliation. This attempt failed, so the EEOC filed a lawsuit on Gerald’s behalf on September 8, 2021. Bourne’s House, LLC admitted to many of the EEOC’s allegations, and the case was settled on May 25, 2022. Some of the major settlement terms include Bourne’s House, LLC:

• Paying Gerald $30,000 in damages.

• Taking steps to not discriminate against employees or job applicants on the basis of pregnancy.

• Providing annual reports to the EEOC with various types of information, such as Bourne’s House, LLC’s anti-discrimination policies and any information relating to a decision to fire or not hire someone Bourne’s House, LLC knew was pregnant.

• Giving each employee two hours of workplace discrimination training.

It took some time, but the EEOC obtained a clear victory for Gerald. One of the biggest reasons was because of a clear admission by Bourne’s House, LLC that it fired Gerald because she was pregnant. With evidence this strong, it’s not surprising Bourne’s House, LLC settled the case on terms the EEOC and Gerald were willing to accept.

Types of Evidence in Employment Cases

The better evidence you have, the more likely you’ll win your case or receive a favorable settlement offer. Yet it’s fairly rare for an employer to do what Bourne’s House, LLC did and admit on social media that they broke the law.

Instead, the evidence is usually less direct and more equivocal. For example, many employment suits boil down to a battle of credibility between the employer and employee and how they come across to a potential judge or jury.

In civil litigation, there are two main types of evidence. First, there’s direct evidence. This is evidence that directly proves something did or did not happen. Second, there’s circumstantial evidence. This is evidence that suggests something has or has not occurred.

In the EEOC’s lawsuit against Bourne’s House, LLC, the April 18, 2019 Facebook message Bourne left for Gerald would be an example of direct evidence as to Gerald getting fired because she was pregnant. But noting “pregnant” on Gerald’s application form from August would be circumstantial evidence that only implies she wasn’t rehired because she was pregnant.

All else being equal, direct evidence is better than circumstantial evidence. However, circumstantial evidence can still be very convincing, especially if there are multiple pieces of circumstantial evidence that support the same proposition.

Categories of Evidence in Workplace Litigation

Whether it’s direct or circumstantial, most evidence from an employment law case can be categorized as:

• Testimonial

• Written

• Historical

Testimonial evidence is oral evidence made under oath, such as at a deposition or on the witness stand in court. What’s being said is important, but equally important (if not more important) is how it’s being said. Much of human communication is nonverbal, so how someone comes across when giving their testimony can make a big difference in how helpful that testimony is.

Next, there’s written evidence. It’s often the strongest type of evidence in an employment law case, especially when it’s direct evidence. The EEOC’s lawsuit against Bourne’s House, LLC is a great example of this. But this type of written evidence often doesn’t exist, the plaintiff doesn’t have it or it’s not direct evidence and is instead circumstantial evidence.

Finally, there’s historical evidence as it relates to the plaintiff’s work history with the employer. In Gerald’s case, this type of evidence wasn’t at issue. But evidence relating to an employee’s work history is often critical in other types of employment lawsuits, especially involving retaliation.

For instance, in a retaliation case, an employer usually doesn’t tell an employee, “I don’t like how you filed that complaint against me, so I’m going to take revenge by firing you.” What’s more common is that the employee has a perfect (or near-perfect) employment record, but does something the employer doesn’t like. Then soon after, the employee is fired for “not meeting expectations” or some other pretextual reason.

This isn’t direct evidence of retaliation. But it’s circumstantial evidence from the employee’s work history that supports the assertion that the employer fired the employee in retaliation for doing something.

Bottom Line

Many employment law plaintiffs struggle to win or obtain a favorable settlement. but it’s not because the defendant is innocent. Rather, it’s because the plaintiff either lacks enough evidence to support their claims or the evidence they have isn’t convincing enough.