Proving Unlawful Employment Discrimination
Employment discrimination comes in two forms, "disparate" (i.e., differing) treatment and disparate impact. Disparate impact describes differing treatment resulting from an otherwise neutral employment condition, like a skills or agility test. This article does not directly address disparate impact discrimination.
The type of discrimination discussed here, disparate treatment, requires proof that the employee's protected class was a motivating factor for the adverse employment decision. In other words, in an age discrimination case, the employee must prove that his or her age was a motivating factor in the employer's adverse decision.
Motivated by Bias
discriminators do not admit discrimination and many actively deny it.
Some may even believe that an unlawful bias did not motivate them even
though that was in fact the case. Thus, employment discrimination is
exceptionally hard, but not impossible, to prove. Successful proof of
employment discrimination requires some or all of the following
- Direct, or "smoking gun" evidence, such as:
- disparaging remarks;
- admissions of bias (“women don't belong in law enforcement/should not be on construction sites/are bad at math”);
- disparaging or demeaning jokes or treatment.
- Indirect evidence, such as:
- statistics (an all white, male executive team or a higher than expected proportion of older workers laid off);
- other cases of similar discrimination; and
- employer failure to follow its own policies with regard to people in the protected class.
- Pretext, which is a false reasons given by the employer to cover up the unlawful reason.
Since motivation is invisible, the U.S. Supreme court adopted a procedure for proving unlawful discrimination. It starts with what lawyers call a “prima facie” case. A prima facie case requires proof that:
- The employee is a member of a "protected class";
- The employee is qualified for the job;
- The employee was terminated, demoted or otherwise treated worse than someone outside of the protected class; and
- The employee was damaged by the discrimination (i.e., lost wages or suffered a compensable injury)
Note that the employer only needs to state a non-discriminatory reason. The employer does not have to prove it had a non-discriminatory reason or otherwise shoulder the burden of proving it did not discriminate. However, once the employer states a non-discriminatory reason, the victim can attack the stated reason as pretextual. A reason is pretextual if it is not the real reason or not a sufficient reason to motivate the adverse employment decision. In that event, a judge or jury may infer from the employer's false reason that the employer tried to cover up an unlawful reason.
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