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The FBI Would Be Guilty Of Clear Bias If Its Trump Investigation Were A Racial Discrimination Lawsuit
 [The Federalist] Conservatives stood agape last week at the inspector general’s refusal to state the obvious in his 568-page review of the FBI and Justice Department’s handling of the Clinton probe: A pro-Hillary political bias led officials to let her off the hook.While Michael Horowitz’s report highlighted numerous instances of anti-Trump and pro-Hillary bias, in true lawyerly fashion he focused in the conclusion on the lack of "documentary or testimonial evidence" showing that political prejudice "directly affected" the decisions made in the investigation. As a lawyer with a niche in employment law, this phrasing struck a chord of hilarity in me, because the methods of proving discriminatory intent are well-established, and such direct evidence of animus (or favoritism) is not required to show that an illegal motive drove an employment decision. Under the federal statute that prohibits discrimination in employment on the basis of age, sex, race, national origin, or religion, a plaintiff must prove an employer took an adverse employment action because of the employee’s membership in a protected class. In other words, an employee must prove that because he is African-American, and not Caucasian, the employer denied him a promotion (or didn’t hire him, or fired him). Over the years, the courts have crafted two methods of proving discriminatory intent: the direct method and the indirect method. Under the direct method, a plaintiff must present direct or circumstantial evidence of animus. Direct evidence basically involves an admission that the illegal animus, whether it be race or sex, national origin or religion, motivated the employment decision. "I fired Ed because he is too old to coach football," would be a simple example. Circumstantial evidence may also establish discriminatory intent but requires an added inference. For instance, circumstantial evidence that racial animus motivated the employer could come in the form of past racist statements or racial slurs, even without the employer tying the employee’s race to the current employment decision. An employer’s past race-based employment decisions would likewise serve as evidence that race motivated the employer’s treatment of this employee. Related: Michael Horowitz: 2018-06-20 FBI agent Strzok escorted from FBI building Friday Michael Horowitz: 2018-06-19 Lindsey Graham To DOJ IG: How Can We Trust Strzok's Findings On Hillary's Email Knowing That He Wanted Trump To Lose? Michael Horowitz: 2018-06-19 Senate: Two-Tiered Justice System in FBI Clinton/Trump Investigations Posted by: Besoeker 2018-06-24 |
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