Providing Evidence of Retaliation
When it comes to compiling evidence that supports your claims of workplace mistreatment and abuse, you should think in terms of direct vs. circumstantial evidence. Direct evidence is the best evidence to have because it is the most blatant and undeniable form of proof. An example of direct evidence is being told that you are not being promoted because you are Black or having your boss give you a memo stating that you won’t be given an opportunity to manage other staff because of your race. Direct evidence involves someone making it blatantly clear that your race is one of the factors or the sole factor in how they are treating you in the workplace.
Most people are too savvy to provide a target with direct evidence of discrimination, harassment or retaliation. But, it does happen. More often than not, a racist will simply find other ways to hide the racially motivated reasons for their actions. For that reason, it’s more likely that you will have circumstantial evidence of race-related discrimination, harassment, retaliation, etc.
Let’s look at how you might prove a circumstantial case of retaliation (retaliation for complaining about race-based abuses at work). According to the EEOC, a violation is established if there is circumstantial evidence raising an inference of retaliation, if your employer fails to produce evidence of a legitimate, non-retaliatory reason for the challenged action (firing, demotions, suspension, transfer to a hard to reach location, being stripped of assignments, harassment, retaliation, etc.) or if the reason provided by your employer is simply a pretext to hide the retaliatory motive.
If you file a complaint against your employer, internally or externally, alleging discriminatory practices, retaliation, etc. and you suddenly become targeted with adverse actions like increased surveillance and heightened scrutiny, unjustified negative performance evaluations, denial of a promotion, suspension or other negative actions, you can link the timing of when you filed your complaint with the onslaught of abuse by your supervisor, coworker or employer.
Circumstantial evidence can come in many forms, but as you gather information that proves your point/position, you also want to collect evidence that disproves/refutes the case being made by your employer. Your employer has likely given you reasons for taking certain actions with regard to your employment. For instance, unjustly demoting you, denying you a promotion or firing you. You need to show that the reasons given by your employer are nothing but a pretext/excuse to hide their true motives, which you believe are racially-based.
You need to do two things: (1) Prove your case with an avalanche of circumstantial evidence or direct evidence; and (2) Prove that the justification provided by your employer is nothing more than a misrepresentation of facts and/or outright lies to hide their race-related motivations!
You have to be strategic. You have to think about all of the evidence that would prove, to a complete stranger, that your position is valid. Pretend that you will have to speak to a two-year old. Don’t assume someone is going to have an instant understanding of your position. Keep your arguments simple and break down all of the relevant points.
Remember, you are looking to highlight actions that directly or indirectly show potentially illegal mistreatment. Keep the word "inference" in mind because circumstantial evidence provides an inference of illegal behavior.