Employee’s Own Declaration Can Support Discrimination Claim

workplace-discriminationThe recent Ninth Circuit case Nigro v Sears, Roebuck & Co. (2015), is extremely helpful in discrimination cases where an employee doesn’t have much proof of discrimination beyond his own testimony about the statements or actions taken against him that are discriminatory. ┬áIn Nigro, a disability discrimination case, the claimant submitted a declaration stating that on June 29, 2009, he had a phone conversation with his manager, in which the manager told him “if you are going to stick with being sick, it is not going to help your situation. It is what it is. You are not getting paid, and you are not going to be accommodated.”

Concluding that this kind of self-serving evidence can support a claim for discrimination, the court emphasized that to be useful in proving discrimination, an employee’s own declarations (1) has to include facts based on personal knowledge and not just conclusions; (2) to be internally consistent; and (3) to be legally relevant.

The Nigro case emphasizes the importance of making sure that a claimant’s declaration does not include assumptions that cannot be proven and exaggerations, so that it can be actually used in proving a discrimination case.