Discrimination in Court
Proving that an employer intended to discriminate against a female worker is critical to establishing liability for sex discrimination (except in disparate impact cases, discussed later in this chapter). The worker's lawyer must produce evidence sufficient to prove that gender was a determining factor in the employer's decision that adversely affected his client—not necessarily the only factor, but a factor that made a difference in the employer's decision.
Proving an employer's discriminatory intent is never easy. Employers have learned to mask acts of employment discrimination with the appearance of business propriety. As the Supreme Court has observed, employers neither admit discriminatory animus nor leave a paper trail disclosing it. Thus, few employment discrimination cases turn on direct or “smoking gun” evidence of sex bias. Employers do not place memoranda in their files that openly admit to an employment decision based on a worker's gender. Even the least sophisticated of employers is careful not to leave a trail of discriminatory conduct, and it would be rare indeed for a corporate executive to take the witness stand and freely affirm he acted adversely to the interests of a female worker solely because of her gender. 1
Employment discrimination suits involve numerous complex procedures that make establishing a case difficult, since they allow employers to create barriers that block or divert plaintiff workers from achieving their litigation goals. In addition, these procedures do not readily lend themselves to resolving employment discrimination cases. The complexities of corporate decision making often cannot be adequately analyzed in the adversarial framework of