Proving Employment Discrimination

Many times people know they have been subject to discrimination but don't know how they can prove it. Women who have seen male colleagues consistently first in line for promotions have said this. People of color who have felt marginalized in the workplace have said this. The same is true for people with disabilities, different national origin, and many more.

The truth is most people who are discriminated against never bring an employment discrimination case. Sometimes this is because it is easier to move on. Other times it is because it can be hard to know how to prove your case.
Even if you have already made a claim, it can be hard to understand what is going on in your case and what evidence of discrimination you need to succeed. The information below is intended to help you understand how the process works.  You can also read more about what to expect as a plaintiff in a civil lawsuit.

Evidence of Discrimination

It is rare for a manager to come out and say that an employment decision was made because you are a member of a protected class. Sometimes there are statements that are direct evidence of discrimination. These could include an explicit comment about men being better suited for a role than women or an explicit reference to race or sexual orientation.

More often you have to rely on circumstantial evidence to show that an adverse employment action was motivated by discrimination. Circumstantial evidence can include:

  • Evidence that people with the same qualifications who are not in your protected class were treated differently.
  • Statistical evidence that over time people in your protected class don't do as well in salary, promotions, discipline, or longevity.
  • A history of discrimination in the workplace by your manager or supervisor.
  • An adverse employment action that is inconsistent with a documented record of high performance and success.
  • Failure to follow an employee handbook or policies that are followed for other employees.

Who Has to Prove What

An employment discrimination claim has three parts: the prima facie case, the employer's opportunity to show a legitimate non discriminatory reason for the action, and your chance to prove that their reason was pretext for discrimination.

Phase One: the prima facie case. "Prima facie" means literally "on first impression." All you have to show at this stage is that you are in a protected class, that you were qualified and able to do your job, that the employer took some adverse action (i.e., termination or demotion), and that either your position was replaced with someone outside of your protected class or your employer continued to post the position and look for other candidates after you were removed. This is generally not a difficult burden to meet for the employee.

Phase Two: the employer's burden to show a legitimate reason. The burden then shifts to the employer to present evidence of a legitimate reason for the action taken. Such reasons can include economics, job performance, restructuring, or employee violations of company policies. 
The employer's reason does not have to be correct or even fair. It just has to be motivated by something other than discrimination. An example is if you are accused of some wrongdoing and the employer wrongly determines that you were at fault. At this stage, it is enough for them to simply demonstrate this reason.

Phase Three: your opportunity to prove pretext. "Pretext" means the stated reason was not the real reason for the decision, but rather a pretext or excuse to cover up the unlawful motive. This is where the core dispute lies in most employment discrimination cases.

If the employer found you at fault but let other employees off the hook for similar conduct, this may be pretext. If others did not meet sales quotas but you were the only one fired for it, that may also be pretext.

In proving discrimination, it is important to gather as much information as you can about other comparable employees to help you show pretext. Such other employees are called "comparators" in employment discrimination law. This can be very powerful evidence of discrimination.

What Evidence Can You Gather

As soon as you think you might have a claim for discrimination or wrongful termination, there are a few things you should do.

First, you should request a copy of your personnel file from your employer. A personnel file will rarely tell the whole story, but it is important to have a complete set of your evaluations and other documentation. This allows your lawyer to evaluate your case. It also helps prevent your employer from changing their story when they learn they have been sued.
Second, you should preserve any written or electronic communications you have relating to your employment. If you have not yet been fired, you should print and save relevant work emails. Once you no longer work for the company, you will not have access to them until discovery, and they can be very helpful to your attorney. You should also preserve any notes or emails you have in your possession.

Other than preserving what you already have, you do not need to undertake an investigation of the facts. This can often do more harm than good. Your lawyer will know what questions to ask, and how to do it in a way that helps your case. If you go interviewing co-workers or others to gather evidence, you may be creating problems for them and a record that is not as helpful as you think.

Being Prepared for the Defense

If you decide to bring a lawsuit, understand that your employer will want to prove that they were justified in their actions. This means you can expect them to try to find evidence that you were a poor employee. It is hard not to take it personally, but this is part of the process. You may be asked questions in discovery that you feel are intrusive or judgmental. Again, it is part of the process, as unpleasant is it may feel.

One thing that helps is to keep it in perspective. If you are working with an experienced employment lawyer, they have seen this a thousand times. They are not judging you for it- it is just evidence that they need to deal with as they present your case.

How Can We Help?

We can help you navigate these issues and get clarity on your rights and obligations if you are facing employment decisions that you think are the result of discrimination.  You can use the button below to schedule a call back from a member of our team, give us a call at  781-784-2322, or fill out our web form  to let us know a little more about your situation.

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"Long overdue public words of gratitude for Emily and her associates' work on my behalf. They were so very respectful of me during an emotionally and financially ridden time -- and that mattered more than the positive result. May all clients have such advocates on their sides!" Donna B.

"Emily Smith Lee handled my age discrimination case against my former employer. She was thorough and professional throughout the whole legal process. Due to her knowledge and efforts we came to an out of court financial settlement with a victory. I would highly recommend Emily to anyone as an extremely competent attorney." Mark B.
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