621 Direct evidence of discrimination

A prima facie case analysis under McDonnell-Douglas is inapplicable where the complainant presents credible direct evidence of a discriminatory animus underlying the challenged decision. Hill v. Stanton Optical (LIRC, 09/26/14), citing Willard v. Piggly-Wiggly (LIRC, 07/31/90).

A statement by the decision maker that he was not in the habit of hiring somebody out of jail and had given the Complainant one chance (referring to the Complainant's conviction for DUI earlier in his employment), made at a time nearly contemporaneous with terminating the Complainant, was direct evidence of a discriminatory motivation. Monpas v. M R S Machining Co. Inc. (LIRC, 04/08/13).

Direct evidence is evidence which, if believed by the trier of fact, would prove the particular fact in question without reliance on inference or presumption. Direct evidence must not only speak directly to the issue of intent; it must also relate to the specific employment decision in question. Wallis v. St. Paul’s Evangelical Lutheran Church & School (LIRC, 08/25/10).

The EEOC has issued guidelines on the analysis of direct evidence. Direct evidence of discriminatory motive may be any written or verbal policy or statement made by a Respondent or Respondent official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. Direct evidence of bias, standing alone, does not necessarily prove that a discriminatory motive was responsible for a particular employment action. A link must be shown between the employer’s proven bias and its adverse action. For example, evidence that the biased remarks were made by the individual responsible for the adverse employment decision, or by one who was involved in the decision, along with evidence that the remarks were related to the decision-making process, would be sufficient to establish this link. Balele v. DNR (Wis. Pers. Comm’n, 01/25/00).

The reliance on stereotypes about the characteristics of people in protected categories (such as, for example, the stereotype that old people are slow) is one of the evils which equal rights laws are intended to prevent. However, to carelessly accept the proposition that an otherwise category-neutral description of a person (for example, “slow”) is automatically to be understood as a surrogate for a reference to their membership in the protected category for which that description is a stereotype (i.e., “old”) would turn the principles of equal rights laws on their head, by acknowledging and relying on the very stereotypes which the law is intended to do away with. The Department does not accept the stereotype that old people are slow, and it will therefore not presume that a comment about someone being slow is a disguised reference to their being old. Connor v. Heckel’s, Inc. (LIRC, 09/27/99).

A gas station attendant proved she was discharged because of her back problems where the decision maker’s written notes indicated that her back problems were a motivating factor for her discharge. Macara v. Consumer Coop. of Walworth County (LIRC, 02/14/92).

While a Complainant is not required to introduce direct evidence of the presence of discriminatory bias in order to prove a claim of discrimination, when a Complainant does introduce direct evidence of the presence of discriminatory bias on the part of a management-level employee of the Respondent, and the trier of fact concludes that the evidence is irrelevant because the management employee played no part in the challenged action, it is incumbent on the decision-maker to explain why it disregarded the evidence. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff’d sub. nom. Gentilli v. LIRC, Dane Co. Cir. Ct., 01/15/91.

The direct evidence that the persons involved in making the challenged decision were motivated by the Complainant’s handicap was unpersuasive because the witnesses were not credible. The first witness had been fired by the Respondent and had tried to blackmail the Respondent. The second witness had left the Respondent’s employ to start a competing business and she testified much differently at the hearing than she had at a prior deposition. The third witness had been fired after he had an extreme personality conflict with a co-worker. Albright v. Steenberg Homes (LIRC, 09/20/90).

The McDonnell-Douglas formula for establishing a prima facie case is inapplicable where the Complainant presents credible direct evidence of discriminatory animus. Willard v. Piggly-Wiggly (LIRC, 07/31/90).

Direct evidence is defined as “proof which speaks directly to the issue, requiring no support by other evidence.” Racially repugnant remarks by an employer are circumstantial evidence. The Complainant must still show that the employer’s racially offensive attitudes led him to discriminate against the Complainant. Mouncil v. Pepsi Cola (LIRC, 02/16/89).

Where there was direct evidence of a retaliatory motive, the finding of discrimination was affirmed notwithstanding the evidence which showed that the Complainant had not applied for the position in question because it had not been posted before the successful candidate was hired, and the evidence which also failed to demonstrate the Complainant's qualifications for the position. Milwaukee County v. LIRC (Milwaukee Co. Cir. Ct., 12/16/87).

Proof of a general atmosphere of discrimination is not direct proof of discrimination against an individual but will be considered with other evidence to determine whether race discrimination occurred. Stonewall v. DILHR (Wis. Pers. Comm’n, 05/30/80).