Proving Discrimination

Many laws have identifiable elements that help you determine whether you might have been treated unlawfully.

Discrimination claims are a little different. You might have a “gut feeling” that you were discriminated against. But how can you tell if you have a valid case? There are numerous questions that you can ask yourself to help determine whether discrimination played a part in your termination.

discrimination claims

You are protected by the federal anti-discrimination laws only if you fall into the category or “protected class” of persons that the particular law covers. The protected class of persons differs under the various federal laws and are summarized above.

evidence of discrimination

Direct Evidence. “Direct Evidence” is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action against you to your protected class status. For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.

Circumstantial Evidence. The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence.

According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, a positive response to the following four questions raises a presumption of discrimination, also called a “prima facie case” of discrimination:

• Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
• Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
• Did your employer take adverse action against you? For instance, were you demoted or fired?
• Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)?

The law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.

The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.

Positive responses to the following questions also assist an employee in marshalling sufficient circumstantial evidence to raise a presumption of discrimination:

• Were you treated differently than a similarly situated person who is not in your protected class?
• Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
• Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
• Does your employer have a history of showing bias toward persons in your protected class?
• Are there noticeably few employees of your protected class at your workplace?
• Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
• Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
• Are there statistics that show favoritism towards or bias against any group?
• Did your employer violate well established company policy in the way it treated you?
• Did your employer retain less qualified, non-protected employees in the same job?

If you answered “Yes” to the first three McDonnell-Douglas questions and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.

No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.

countering your employer’s denials

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you. In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. This is not very difficult for an employer to do. All that the law requires is that the employer “articulate” or state a reason. It does not have to prove that it is the true reason. A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.

If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. There are several ways to do this.

Can you show that the stated reason is:

• Factually untrue?
• Insufficient to have actually motivated your discharge?
• So riddled with errors that your employer could not have legitimately relied upon it?
• Can you show that your protected status is more likely to have motivated your employer than the stated reason?
• Do you have powerful direct or circumstantial evidence of discrimination?

If you can demonstrate any of the above, you may be able to prove that the employer’s stated reason is just a coverup or pretext for discrimination. The law requires you to show not only that the stated reason is false, but that the unlawful factor was the real reason, or that the employer’s stated reason and your protected status both played a role in your termination.

This is a selection from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.