Proving “injury” in an employment law case is one of the most difficult things to do. Unlike a personal injury case, an injury in an employment case does not have hard evidence such as an actual physical injury that can be easily described and diagnosed by a doctor.
Emotional distress from a firing may have physical manifestation but it does not show when you look at someone. That is, there is no loss of limb or broken bone. That’s not to say there’s no injury, but rather the injury is often emotional and psychological.
Proving liability is the primary hurdle in an employment law case. In a car wreck if someone runs a red light and hits your car, the liability is clear. In an employment case, proving the defendant violated the law is difficult because in almost every case the defendant says, “I didn’t do that.”
Discrimination is often hidden by discreet manipulation of personnel and employment files. Rarely will there be a smoking gun email that says, “let’s fire John because he’s too old” or “we need to fire Susan because she’s pregnant.”
The case will be won through circumstantial evidence. Patterns or statistical data can be used leading up to the firing that don’t seem to add up or make any sense. The reason the company claims a person was fired for may not be true. In addition, comments made by the employer during employment could prove intent of the employer. These comments might be along the lines of “can’t teach an old dog new tricks,” “old fart,” or “concerns” about a woman being able to do her job while she’s pregnant or just had her baby.
If you can couple comments with circumstances, sometimes that is enough for a jury. Ultimately even though some of these cases are a “he said, she said,” that is sometimes all you’re able to take to court. Many of these cases are decided because they will determine the intent behind someone being fired or harassed. If a jury hears the entire story from both sides, they’ll often have enough evidence to make an informed decision.
Photo credit: PhotoAtelier (Flickr, Creative Commons)