Change of Feedback is “Direct” Evidence of Discrimination

By Ted Olsen

Few modern employment discrimination cases involve "direct" evidence of discrimination, i.e., statements by the decision-maker that clearly show, without inference or interpretation, that the employment decision was based on unlawful bias.  But an Illinois federal court recently decided that a mere change of employer feedback to an employee - from praise to criticism - after she disclosed her disability was not only proof of discriminatory bias, but "direct" evidence of disability discrimination.  Quist v. Spiegel & Utrera, P.A., Case No. 10 c 475 (N.D. Ill. July 1, 2011).  According to the plaintiff, her work was consistently lauded by her employer, a law firm, in the ten months preceding her report that she had been diagnosed with cervical cancer and/or dysplasia.  But, the plaintiff claimed, the employer repeatedly criticized her work performance and conduct in the four months after the report, leading up to her dismissal.

There is no question that a flip the switch change in an employer's assessment of an employee's work may be circumstantial evidence supporting a claim of discrimination, but it is far from direct evidence of discrimination.  Such evidence requires interpretation and inference-drawing, and does not relate to the specific employment practice at issue.

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©2011 Sherman & Howard L.L.C.                                                September 1, 2011