Proving Discrimination

Proving discrimination in the workplace is more or less the same whether the discrimination is on the basis of age, race, sex, national origin, or anything else that is illegal.

This is a very basic guide to how discrimination in the workplace cases are proven. Each case is different, and this basic guide may not apply to every case.

This is especially true of disability discrimination in the workplace, where other factors, such as "reasonable accommodation" are at issue. A "reasonable accommodation" is when the employer modifies the job duties, provides some extra help, or takes some other measure to ensure that the person can still be able to do the job.

As will be seen in the final step of this guide, recent court decisions have made proving discrimination in the workplace more complicated than it's laid out here. However, the guide that follows is still good instruction as to how discrimination in the workplace cases work.

Step One: The Employee's Position

First, the employee shows that:

  1. he is a member of a "protected class", and
  2. he suffered an "adverse employment action"

Everyone is a member of at least one protected class or category, because sex or gender is a protected class or category. The specific categories which are protected are spelled out in particular laws, or statutes. Because gender, or sex, is one protected category, everyone is protected by at least one category. Many people fall into more than one protected category.

An adverse employment action is anything the employer does which affects the employee's job and isn't positive. This can be just about anything relating to someone's job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment.

Step Two: The Employer's Position

The employer must then state that there was a legitimate reason for the adverse employment action. For example, we'll take the case of a black man who was fired, and says it's because he is black; because the employer is racist.

The employer might state that the employee was not fired because he was black, but because the employer was actually down-sizing. That is a perfectly legal reason to fire someone. Just because the person is black does not mean that you can never fire him; it just means that you can't fire him because he's black.

Here, the employer says it wasn't because he was black but because the company was down-sizing.

Step Three: Proving Pretext

The employee then has the chance to show that the employer's reason for the firing was not the legitimate reason that the employer says it was. The employee is trying to show that the employer's reason for the firing is "pretext".

In the example, the employee might be able to show that his position wasn't actually eliminated. For example, if the same day he was fired the employer hired someone to replace him, there clearly wasn't a downsizing going on.

Step Three-And-A-Half: Proving Discrimination in The Workplace

It used to be that that was enough. Once the employee proved that the employer's supposed reason wasn't actually the legitimate reason, then the court would presume that the real reason was the illegal one.

In the example, once the employee showed that the employer wasn't downsizing, but had actually hired a new person, the presumption was that the employer had discriminated.

However, a series of court cases said that the employee must come up with some actual proof that there was discrimination in the workplace. Just proving that the employer's reason isn't the real reason isn't enough.

In the example, the employee would have to present some evidence that he had been fired because he was black. He might be able to show that the person who decided to fire him had called him "nigger". This is pretty good proof that the person is a racist.

Step Three-And-A-Half: No Longer Necessary

Reeves v. Sanderson Plumbing Products, Inc. alleviated the plaintiff's burden in proving employment discrimination. Before this case, once the employee proved that the employer discriminated against the employee, the employer could rebut this by showing a legitimate non-discriminatory reason for the adverse employment action. Then, the employee had the additional burden of proving that this was pretext by convincing the court that the true reason was discriminatory.

Now, the court holds that if the plaintiff can prove that the employer's offered reason was pretext, this can be sufficient to proving the plaintiffs case, and the court can hold the employer liable.  Of course, this is not to say that a showing of pretext by the plaintiff will always be adequate to sustain a jury's finding of liability. There will probably be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact finder could conclude that the action was discriminatory.

Using Statistics to Prove Discrimination in the Workplace

Statistics can be very useful in proving discrimination in the workplace cases of all kinds. This is especially true when the company is very large. In those cases, there are large enough numbers to do a real statistical analysis.

For instance, a woman applies for a job she is very well qualified for. The company doesn't hire her. She finds out that the person they did hire is not nearly as qualified as she is.

With nothing more to go on, that's not a very good case. The company could just say that they didn't like her at the interview. That's a perfectly legal reason not to hire someone, no matter how good their qualifications are.

But if the woman can show that many men have been given this position, and few or no women have, she might be able to prove her case with statistics. If the numbers are good enough, they can be very strong evidence of discrimination.

Related Topics

To understand how to prove discrimination in the workplace, it is important to understand the two types of discrimination in the workplace: disparate treatment and disparate impact.

Disparate Treatment: Discrimination in the Workplace

Disparate treatment is straightforward discrimination in the workplace. Simply put, it is treating a person differently because of a protected class, like sex or race.

Disparate Impact: Discrimination in the Workplace

Disparate Impact Discrimination is more complicated. "Disparate Impact" is where some type of company policy excluded a certain individual or individuals from the job or from promotions. The policy wasn't designed to exclude them; that was just the unfortunate result.

One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; the were more than was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women. That was just the result of their policy; it had a disparate impact upon women. Because the policy wasn't sufficiently job-related (too much strength was required) there was discrimination in the workplace.

Further Information