Proving Employment Discrimination

Before being able to prove whether you have grounds for an employment discrimination claim or not, it is helpful to have an understanding of what employment discrimination is first.

Employment discrimination is a form of discrimination against a protected class of people. It occurs either when an employee, or prospective employee, is treated less favorably than other employees or prospective employees because of certain background or personal characteristics that are protected by law.  

Pursuant to a federal law known as, Title VII of the Civil Rights Act of 1964 (“Title VII”),  it is illegal for employers to discriminate against employees based on the following:

• Race or Color;
• National Origin; 
• Gender or Sex;
• Age;
• Religion;
• Disability;
• Veteran Status; and 
• Pregnancy.

Title VII generally applies to employers with fifteen or more employees. It also includes locations of employment for federal, state, and local governments.

Although Title VII is one of the primary laws that are considered during an employment discrimination claim, there are many other federal laws that may apply. These include the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Equal Pay Act. 

Additionally, there are also individual state laws that may apply to your claim. In these cases, it is important to hire a local employment lawyer who handles these types of matters. They can counsel you about your rights as an employee and how to go about protecting them. 

How Do I Prove Employment Discrimination?

If an employee believes that they might have experienced employment discrimination, either during work or at an interview, they will need to make a “prima facie” case of discrimination. This phrase basically means that they will need to establish a case that the opposing party can argue against or attempt to disprove. 

In general, establishing a prima facie case for employment discrimination will typically include the following elements:

• The employee is a member of one of the above mentioned protected classes of people;
• The employee has suffered an adverse job action, such as:
  • A demotion;
  • A loss of benefits;
  • Being terminated or fired;
  • Being forced to retire; or
  • Not being hired or recruited due to having certain characteristics that are protected by law.
• The employer treated similarly situated employees who do not share the protected characteristics more favorably; and
• The employee was qualified for the position, but still did not receive it for one of those unlawful reasons. 

What is Pretext and Why is it Important to Proving Employment Discrimination?

In employment law, pretext refers to a false excuse given for an adverse employment action that hides the true motives for why the employer acted in the manner that they did. 

Essentially, the employer attempts to provide a legitimate justification (pretext) for taking certain actions against an employee that are not based on unlawful or discriminatory grounds. 

For instance, if an employee is terminated from employment because an employer discovers that they are Catholic, an employer may attempt to show that there was a company restructuring that led to the termination, as opposed to it being due to the employee’s religious beliefs.

This is it is a good idea during an employment discrimination lawsuit to have an attorney to help you gather evidence that proves the actual intentions of your employer’s actions. 

How is Pretext Determined?

There are many ways to prove that pretext exists, including situations where pretext can be implied from an employer’s unlawful discriminatory behavior. Some examples include:

• Changing Reasons: An employer who keeps changing their reasoning to justify why they fired an employee is more likely to be lying than an employer’s whose reasons remained the same throughout the dispute;
• Timing: Proximity in time between a protected activity and the adverse employment action may allow the factfinder to infer workplace retaliation. The shorter the time frame between the employee’s actions and termination, the stronger the evidence is for proving that a pretext exists; 
• Delay in Dealing with Employee Behaviors: If the employer claims that an employee was fired for their foul language, poor job skills, inattentiveness to detail, etc., but has employed that worker for a long period of time and has never noted or disciplined this behavior in the past, then it is more likely that the reason is exaggerated to justify the firing; or 
• Deviation from Policy: Employers who have never fired employees for failing to do something, e.g., lift twenty-five pounds, and then suddenly terminates a recently-disabled employee for that very same reason, is more likely to be found unlawfully discriminating against the employee.

What Other Things Can I Use to Strengthen My Case Against My Employer?

An employment discrimination case can be strengthened by providing witness testimony to support the case. For example, a witness may have overheard the employer make legally offensive comments about an employee based on their membership in one of the above protected classes.

A witness can also be used to testify about the employee’s credentials. For instance, if the employee was overlooked for a promotion, a witness who received the promotion can testify as to their own credentials. If the witness has weaker credentials than the employee who was passed up for promotion, then this could imply that the employer acted in a discriminatory manner. 

Additionally, if an employee has paperwork that demonstrates their stellar work performance, this can also be used to strengthen their case. This is especially true if that worker was fired for poor performance or passed up for a promotion. Items such as a performance review or a congratulatory email that praises the employee’s work product can be very helpful in supporting an employment discrimination claim. 

Can an Employer be Held Liable for Discriminatory Actions Done by Their Employees?

Employers are generally held to be vicariously liable for the actions of their employees. In such a case, if a manager unlawfully discriminates against an employee, an employer can be held liable for the manager’s discriminatory actions. 

If the manager was acting outside of their authority (e.g., not within the responsibilities of their job description), however, then the employer will usually not be held accountable for the resulting discrimination.

Alternatively, May a Manger Personally be Held Liable for an Employer’s Discriminatory Behavior?

A manager who is directed by an employer to carry out the employer’s unlawful discriminatory acts will not personally be held liable for that employer’s discriminatory request. This is because a manager acts as an “agent” of the employer, but does not share the employer’s discriminatory intent. 

Basically, in this instance, the manager is just doing what they are told to keep their job, not because they personally believe it or want to do whatever discriminatory thing they were told to do against that employee. Therefore, the manager will generally not be held liable for the discrimination. 

Should I Contact an Attorney for Help with an Employment Discrimination Claim?

Employment discrimination claims are quite complicated and require a lot of evidence to prove your case. Thus, it may be in your best interest to hire an discrimination lawyers who is qualified to handle such complex matters. 

An employment law attorney can help you assess your case and depending on the situation, will be able to represent you in a court of law or guide you through settlement negotiations. Additionally, a lawyer can also help you gather the necessary information to prove that you experienced unlawful discrimination in the workplace.