Don't Spill the Beans: Employer's Representative's Statement May Be Admissible to Prove Discriminatory Intent in Decision to Terminate

Author: Shannon C. Johnson

In Makowski v. Smith Amundsen, LLC, +662 F.3d 818 (7th Cir. 2011), the 7th Circuit Court of Appeals decided whether an employer's representative's statement could be used to prove discrimination in a decision to terminate an employee on FMLA maternity leave.

Typically, an out-of-court statement by an individual other than the defendant itself is considered hearsay, meaning that it cannot be used as evidence of discriminatory intent. Additionally, an employee on FMLA maternity leave is protected against discrimination based on pregnancy, childbirth or any related medical conditions by the provisions of the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA).

In this case, the 7th Circuit Court of Appeals decided that the statement in question, verifying the employee's suspicions that she had been wrongfully terminated, qualified for one of the several exceptions to the hearsay rule. The court held that a Human Resources Director's statement was essentially an admission by the employer itself, given that the HR Director's job duties encompassed compliance with federal anti-discrimination legislation and hiring and firing of employees.