New York Employment Lawyer Blog

Our courts have consistently confirmed that they are well aware that acts of discrimination are usually not practiced openly. Instead, it is frequently performed clandestinely, behind closed doors, leaving no open evidence of the discriminatory behavior so that you are without direct proof, or witnesses. It stands to reason that management persons would hardly leave evidence, or pass around memos which even suggest, that they are engaged in discriminatory conduct against another employee because of age, gender, race, disability, or for any reason which could result in a claim of discrimination by an employee.

Courts have adjusted the extent and nature of the proof required in order to establish a viable claim of discrimination, talking into account the fact that there will be no smoking gun. Only as example, victims of discrimination do not require absolute, direct proof of the actual act. Discriminatory conduct may be established by circumstantial evidence. In fact, a woman who is being sexually harassed need not have direct proof that she was groped or touched. She can prove it by her testimony alone or by circumstantial testimony. This was reconfirmed by the court in Thoreson v. Penthouse, 149 Misc. 2d 150 (Sup. Ct. NY Co. 1990), 179 A.D. 2d 29 (1st Dept. 1992), 80 NY 2d 490 (1992), an often cited case in which our office represented the female who complained.

As an example of circumstantial evidence, you might consider, for example, that you are a juror and when you walked into the courthouse in the morning, the sun was shining and the streets were dry. When you left the courthouse at the end of the day, the streets were wet and people were carrying folded umbrellas and rain coats. The court might then tell you that you might then properly find that it was raining sometime during the day when you were in the courtroom, although you yourself did not actually see it rain.

Accordingly, you may find that discrimination occurred based on circumstantial evidence. You do not require direct proof, such as actual witnesses, or written material. Under proper circumstances you might be able to establish your case, based on circumstantial evidence alone. If, therefore, you believe you were discriminated against, but have concerns as to whether you have adequate proof to establish your claim, please feel free to contact our office, or any other employment attorney, for an opportunity to discuss your claim. It may well be that you do have a viable claim, based upon the extent of proof that the law requires. You will never know unless you ask. We can be reached by telephone at 212-889-6565, fax at 212-779-8208 or email at info@schwartzandperry.com,

We hope to share with all our readers, messages that might assist you in better understanding our Human Rights Laws and your rights to seek its protection, as your needs may require.