By Bill Wright
A plaintiff recently asserted age and sex discrimination claims and attempted to support them with “direct evidence.” The proposed direct evidence, however, was the testimony of two other employees. One testified: “I really think that anyone that was older with more experience [the decision-maker] felt they were threatening to him, and I felt that way personally.” The other testified: “I felt like to other members of the senior leadership team, I felt like my age and perhaps even the fact that I was a female was, I think, a limiting factor.” Not surprisingly, the court found that a plaintiff cannot build a case based on co-workers’ thoughts and feelings. Instead, “direct” evidence requires a “specific link” between the motive of the decision-maker and the adverse employment action. Holmes v. Trinity Health, No. 12-3129 (8th Cir. Sept. 4, 2013).
It is reassuring that courts still require proof to support civil claims. Employees’ feeling and thinking – and even wishing – there was discrimination, without any basis beyond their own speculation, does not cut it.