EEO Investigators should examine all kinds of evidence in an investigation:  direct evidence, circumstantial evidence, and statistical evidence (if possible, but usually not practical if expert opinion is required).  

In a recent 9th Circuit case (EEOC v. The Boeing Co.), the Equal Employment Opportunity Commission (“EEOC”), on behalf of two Boeing employees, argued that the trial court erroneously granted summary judgment in favor of Boeing.  The employees alleged discrimination and retaliation under Title VII of the Civil Rights Act of 1964 after they were RIF’d.  Boeing had terminated these two employees after they received low scores on reduction-in-force (“RIF”) assessments, which Boeing used to evaluate employees when determining whom to lay off.  

The 9th Circuit held that the EEOC had introduced adequate evidence from which a reasonable jury could have concluded that the reasons Boeing advanced to justify its employment actions were pretextual.  Accordingly, the 9th Circuit reversed and remanded the case for trial.  See EEOC v. The Boeing Company, Case No. 07-16903 (9th Cir. 2009).

What can an EEO investigator take from this case?  This case demonstrates how investigators should look closely at the "legitimate non-discriminatory reason" or "legitimate non-retaliatory reason" provided by the employer, and determine whether any circumstantial or direct evidence is contrary to the proffered reason for the adverse employment decision.  In the Boeing case, the 9th Circuit believed that the facts demonstrated enough evidence for a reasonable jury to believe that Boeing’s proffered reason (low test scores on RIF assessments) for its actions was really a "pretext" (i.e. fake or phony excuse) for discrimination.

The Boeing Court explained that two ways exist to determine "pretext":

“[E]ither directly by persuading the [fact-finder / EEO Investigator] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

Concerning one of the two employees, the Court found "direct" evidence of sexually discriminatory animus because of demeaning comments a decision-maker had made about women in general.   The Court noted that the employee’s poor RIF evaluation scores, which led to her termination, were pretextual because her supervisor in her new department had previously referred to her as a “little girl” and made a “joking” inquiry as to whether she “broke a nail.”  Although these comments occurred two years prior to her firing, and Boeing argued that these comments were merely inadmissible “stray remarks," the Court held that the supervisor’s comments constituted at least some evidence of discriminatory animus. 

The Court added that in RIF cases, an employee can “show through circumstantial, statistical or direct evidence that the termination occurred under circumstances giving rise to an inference of . . . discrimination.”   Here, the Court also found "specific and substantial circumstantial evidence" of pretext in that the decision-maker:

• Initially refused to transfer the employee at all;
• Made promises to transfer her to the department she requested;
• Agreed to transfer her, but only to a different department to which no other engineers from her department had been transferred in recent years; and
• Assured her that she would be exempt from the RIF process during her training in order to induce her to accept the transfer despite her explicit (and not unwarranted) concern that the transfer might significantly increase her risk of termination.

In short, a workplace investigator needs to look at all the direct and circumstantial evidence carefully to determine whether the employer’s "legitimate business reason" was a pretext.  In an EEO investigation, the investigator is the fact-finder and must evaluate credibility of the witnesses and try to access the real motivations of the decision-maker.  The investigator needs to ask the complainant employee to articulate all the reasons why he/she believes the employer’s alleged business reason is a really a façade (or pretext) for a hidden discriminatory motive.