How to Prove Workplace Discrimination — Part 1

How to Prove Workplace DiscriminationHow a plaintiff goes about proving a workplace discrimination case depends on several factors, including the particular law violated, the nature of the discrimination and the status of the employee(s) who performed the discriminatory act(s). Title VII, the PDA, the ADEA and the ADA allow plaintiffs to bring claims based on disparate impact, meaning that the employer has policy or practice which is neutral toward the protected class on its face, but has a greater statistical impact on a protected class in practice. Because these types of claims involve issues of statistical proof that will go beyond a lay person’s ability to produce or even understand, I’m not going to discuss how one goes about proving these types of claims. Rather, this article will only address issues of proof in disparate treatment cases, meaning cases where the employee is intentionally subjected to adverse employment action or a harassment based on his or her membership in a protected class. This type of claim is available under Title VII, the PDA, Section 1981, the ADEA and the ADA. This article assumes that you have read the article pertaining to the law under which you wish to proceed and that you have confirmed that (1) your employer is subject to that law and (2) you qualify for protection under that law.

Workplace Discrimination — Two Types of Disparate Treatment Claims

There are generally two types of disparate treatment claims one can bring as part of one’s workplace discrimination claim: (1) a claim that some tangible employment action was taken against you because of your membership in a protected class and (2) a claim that you were subjected to harassment based upon your membership in a protected class. While these events are not mutually exclusive, the second category includes only claims where no tangible employment action was taken against the employee. Part 2 of this article discusses workplace discrimination claims based on harassment.

Tangible employment action is a fairly easy concept to understand. You suffer tangible employment action when:

  • you apply for a job and are not hired;
  • you are fired;
  • you apply for a promotion and don’t get it;
  • you are demoted;
  • you are disciplined;
  • you suffer a cut in pay or benefits; and/or
  • you do not receive the same increase in pay or benefits as similar employees outside your protected class;

Any action that affects your pay or your employment status with the employer is a tangible employment action.

Proving Workplace Discrimination When Tangible Employment Action is Taken

When an employee alleges workplace discrimination involving tangible employment action, he or she is claiming that the employer intentionally subjected him or her to an adverse employment action due to his or her membership in a protected class. In rare cases, an employee can prove this through direct evidence, such as an employer specifically stating that its motive is discriminatory, or by applying a policy that is discriminatory on its face. In most cases, however, this will need to be proven through indirect evidence (circumstantial), which involves a series of shifting burdens that the employee and employer must meet to prove or disprove the claim.

Plaintiff’s Initial Burden of Proof in Intentional Discrimination Cases With Adverse Employment Action — The Prima Facie Case

In “indirect proof” cases, the plaintiff must first make out what is known as a prima facie case of discrimination. This will depend on the type of adverse employment action taken by the employer.

Under the indirect method in a hiring case, the plaintiff must allege:

  • the plaintiff is a member of a protected class;
  • the plaintiff applied and was qualified for a job for which the employer was seeking applicants;
  • despite his or her qualifications, plaintiff was rejected;
  • that after plaintiff’s rejection, the position remained open and the employer continued to seek applicants from persons with similar qualifications. (Note that at this stage, it does not matter if the position was ultimately given to someone outside plaintiff’s protected class in the majority of courts, though that could be relevant in later stages of proof).

Under the indirect method in a firing case, the plaintiff must allege:

  • the plaintiff is a member of a protected class;
  • the plaintiff was qualified for the position and satisfying the employer’s legitimate expectations;
  • the plaintiff was fired; and
  • after the firing, the employer sought a replacement with qualifications similar to those of the plaintiff. (Note that at this stage, it does not matter if the position was ultimately given to someone outside plaintiff’s protected class in the majority of courts, though that could be relevant in later stages of proof).

Under the indirect method in an other adverse employment action case, the plaintiff must allege:

  • the plaintiff is a member of a protected class;
  • the plaintiff was satisfying the employer’s legitimate expectations;
  • the plaintiff suffered an adverse employment action (e.g., demotion, pay cut, discipline, etc.); and
  • similarly situated employees outside plaintiff’s protected class were treated more favorably under similar circumstances.

You will notice that in hiring and firing cases, the employee does not need to specifically allege that he or she was treated differently from employees not in his or her protected class, and in most courts the employee does not even need to allege that the job at issue was ultimately given to someone outside the protected class. It is enough at this stage of proof to show that the protected employee was qualified to performed the job and was not hired (or was fired).

The Employer’s Burden After the Plaintiff Has Made a Prima Facie Case for Workplace Discrimination Based on Tangible Employment Action

After the plaintiff makes his or her prima facie case, the employer must then produce a legitimate, non-discriminatory reason for taking the adverse employment action. Note that this is purely a burden of production, not a burden of proof. In other words, the employer must simply produce a non-discriminatory reason for its actions — it need not prove that this is the actual reason it took the adverse employment action (the burden of proof always remains with the plaintiff).

In cases based on hiring, an employer could state that it hired a more qualified applicant. In cases based on firing, it could state that the employee had not met its legitimate expectations or that the employee had committed a terminable offense. For other adverse employment actions, the employer could state that the employee committed an offense that was worse than that of other employees who received lesser discipline, or that the other employees identified by plaintiff were not “similarly situated”.

There is a broad range of non-discriminatory reasons from which an employer can choose at this stage. Any reason not related to the employee’s membership in a protected class will suffice.

The Employee’s Burden of Proving that The Employer’s Stated Non-Discriminatory Reason is a Lie

After the employer produces a non-discriminatory reason for the adverse employment action, the burden shifts back to the employee to prove that the employer’s stated reason is pretext (i.e., a lie), and that the real reason for the decision was intentional discrimination. For plaintiffs, this is the most difficult element of proof, and it is highly dependent on the facts of each individual case.

In cases based on failure to hire, an employee could meet this burden by proving that he or she is more qualified than the applicant ultimately hired for the position. As you might imagine, whether someone is more qualified than another applicant may not be cut and dry. Variances in education (quality of schools, types of degrees, etc.) and experience make judging the relative qualifications of two people a highly subjective experience. Absent a clear advantage in the plaintiff’s favor, the plaintiff will need to produce some other evidence (racial/sexual comments, etc.) to prove that the employer engaged in improper discrimination.

For terminations and other adverse employment actions, cases will often hinge upon how the employer treated similarly situated employees outside the plaintiff’s protected class who committed similar violations of company policy or had similar performance issues. If an employer claims that the plaintiff was fired for poor performance, the plaintiff must prove that other similarly situated employees outside his or her class were not terminated for similar performance. Comparing the performance of two employees can prove to be highly subjective, so it is always helpful to have other evidence of discriminatory motive, such as derogatory comments by the employer against people in the protected class (e.g., gender or racial slurs).

Note that even if the plaintiff proves that the employer’s stated non-discriminatory reason was pretext, the plaintiff does not necessarily win. While in some cases, proving that the employer lied about its stated reasons for adverse employment action will naturally lead to the conclusion that discrimination was the real motive, this isn’t always the case. The person making the hiring/firing decision may have a non-discriminatory reason that he doesn’t want to put forth due to embarrassment or other reasons. For example, if a manager passes over a black male applicant in favor of a less qualified white female applicant, he may have done so because he’s sleeping with that female applicant (which actually doesn’t violate any discrimination laws). Proving that his stated reason that “the white female applicant was more qualified” is pretext in this case does not win the day for the plaintiff if the jury concludes that the manager really just wanted to hire his girlfriend.

Workplace Discrimination Based on Mixed Motives

Sometimes an employer will have more than one motive for taking adverse employment action against a plaintiff. If one of these motives is to discriminate against a protected class, it presents what is known as a mixed motives case.

In mixed motives cases in which the employee proves that discrimination was a substantial motivating factor in the employer’s decision (i.e., “but for” the discriminatory motive, the action would not have been taken), he or she prevails the same as if discrimination were the sole reason in Title VII, PDA, ADA and ADEA cases, with all forms of damages being available.

However, if the plaintiff can only prove that improper discrimination was a motive, and not the substantial motivating factor for the decision, this drastically changes the types of damages available. Under Title VII and the PDA, the plaintiff can only receive declaratory relief (an order stating that discrimination occurred) and attorney’s fees. In Section 1981 cases, a plaintiff may not be able to prevail at all — this is an area of unsettled law. Under the ADEA and ADA, it is clear that the plaintiff must prove that “but for” the employer’s discriminatory motive, the adverse action would not have been taken — therefore, no damages are recoverable under the ADEA or ADA in a mixed motives case where discrimination was not the primary reason for the employer’s decision.

Burden Shifting Happens Behind the Scenes in Workplace Discrimination Lawsuits

In workplace discrimination cases, the jury is not instructed in burden-shifting procedures. Rather, most of this happens “behind the scenes” and the jury is just presented with the ultimate question of “whether the employer intentionally discriminated against the plaintiff”.

Whether each side meets its relative burdens is usually more relevant to how the case proceeds prior to the trial. If a plaintiff fails to make out a prima facie case in his or her Complaint, the judge will dismiss the Complaint. If the defendant fails to produce a non-discriminatory reason for its actions, or if the plaintiff fails to produce enough evidence that the employer’s stated reason is pretextual to allow a jury to reach that conclusion, the judge may decide the case on a summary judgment motion.

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We will discuss workplace discrimination cases based on harassment (hostile work environment) in Part 2 of this article.

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