Evidentiary Inequality

Abstract

Federal employment discrimination law is rife with evidentiary inequality. Courts allow employers to draw from a broad palette of evidence to defend against discrimination claims, while highly restricting the facts from which plaintiffs can prove their claims.

This Article is the first to comprehensively identify all of these evidentiary pressures and how they affect plaintiff’s claims. It draws from hundreds of cases to show how judges favor the employer’s evidence and disfavor the plaintiff’s evidence across multiple dimensions, such as time, witnesses, documents, relevance and reliability.

Judges have created a host of named doctrines that severely restrict the evidence courts will allow plaintiffs to use to prove their discrimination claims. At the same time, a host of unnamed, and thus invisible, doctrines and preferences further bias the evidentiary record in favor of the employer. The cumulative weight of the named and invisible doctrines make it difficult for plaintiffs to prove discrimination.

This evidentiary inequality is court created and is not required by or contained within the federal discrimination statutes. The Article argues that judges must create clear rules that guard against this evidentiary inequality.

Keywords: discrimination, employment law, evidence, civil procedure