No "Smoking Gun" Needed to Establish Employment Discrimination
Our courts have consistently confirmed that they are well aware that acts of employment 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 individuals 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, a disability, gender, race or for any reason which could result in a claim of employment discrimination by an employee.
Courts have adjusted the extent and nature of the proof required in order to establish a viable claim of employment discrimination, talking into account the fact that there will be no smoking gun. Only as example, victims of employment 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 Magazine and Robert Guccione, 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 Schwartz & Perry LLP represented the plaintiff.
