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Circumstantial Evidence of Age or Race Discrimination is Sufficient

Should a cashier who is 54 years old and black be employed by a supermarket whose managers preferred young white employees? What if the evidence of such a preference is just circumstantial?

Apparently it didn't occur to the managers at Publix Super Markets in Northport, Alabama that this should be an issue. Betty Shackelford was a 54 year old black cashier there who presented direct evidence of discrimination after she was fired. She stated that he store manager who fired her said "Publix needs more younger workers because they are more reliable and it makes our image look better" and another worker's testimony that the manager and team leader agreed that Publix needed to hire more young, white women.

Shackelford's coworker attested that he heard the store manager and a team leader agree that "front end" employees (like cashiers) should "mirror" the clientele, who were mainly young and white, and that it was problematic that most front end workers were black. Another worker heard the manager say younger workers were more reliable and made the store's "image look better." Another employee, who was 57-years old, reported that managers targeted her due to her age and often said she was too slow.

Another coworker testified that the manager assigned only one black employee to the difficult task of stocking the freezer but assigned that task to two white employees. The manager also reportedly "talked down" to black employees and had a "pattern" of reprimanding and firing black employees, then replacing them with white employees.

Publix alleged in the suit that she was fired for violating handbook rules on theft and employee purchases. In the next year, Publix hired 12 cashiers, only one of whom was African-American; none were over the age of 40.

The court denied Publix's motion to dismiss the case, finding there was direct evidence of age and race discrimination. Even without the direct evidence, the court stated that there was enough circumstantial evidence to support a claim. It noted that only one of the 12 cashiers hired in the year after the employee's termination was African-American and that, during the store manager's tenure, the percentage of front-end black employees dropped from 33 percent to 14.8 percent.

The takeaway: Sometimes evidence of age and race discrimination is direct, which is enough to prove a case of discrimination. But circumstantial evidence can by itself be enough to prove an age or race discrimination claim.

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