On some television shows, an oft-used phrase is that evidence “is only circumstantial,” suggesting that circumstantial evidence is somehow less-effective for use at trial.

An employment plaintiff will usually NOT have direct evidence of the employmer’s discriminatory or retaliatory mindset, because employers will most often try to hide such intent.

The law has evolved to solve this problem, by embracing the various forms of circumstantial evidence that is often available.

“The necessary elements of a prima facie employment discrimination case are not Platonic forms, pure and unchanging; rather they vary depending on the facts of a particular case…. since discrimination exists ‘in forms as myriad as the creative perverseness of human beings can provide’ [citation], certain specific elements do not constitute ‘the alpha and omega’ of a prima facie [discrimination] case…” Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 611 (quoting Thornbrough v. Columbus and Greenville R. Co. (5th Cir. 1985) 760 F.2d 633, 641-642).

It is a question of fact for jury whether employer’s stated reasons for discrimination and retaliation are pretextual: “In short the trier of fact decides whether it believes the employer’s explanation of its actions or the employee’s.” Mixon v. Fair Employment & Housing Com’n (1987) 192 Cal. App. 3d 1306; see also Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467 (A plaintiff is not required to submit direct evidence of defendant’s intent so long as an improper motive can inferred from circumstantial evidence).

In a Title VII discrimination case, U.S. Supreme Court unanimously held “that direct evidence is not required.” The Court reasoned, “We have often acknowledged the utility of circumstantial evidence in discrimination cases. * * * ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’ [Cites omitted.]” Desert Palace Inc. v. Costa (2003) 539 U.S. 90, 99-100.

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