Believing you’ve been discriminated against at work and proving it are two different things. You may have good reason to think you lost out on a promotion or a new job because of your race, age, sex, religion, or some other basis, but without proper proofs, whether testimonial or documentary, your thoughts won’t get you very far. There are some general rules on how employment discrimination cases are proved.

With the exception of one type of case, to be successful in an employment discrimination case you will need to show that it’s more likely than not that the defendant used your protected status (age, sex, color, religion, etc.) as a reason for an adverse employment action (firing, demoting, failure to hire, etc.). It requires a showing of intent by the person or persons involved, such that if the judge or jury could go back in time and read the minds of those involved, the illegal reasons were the provable cause of the trouble.

How do you go back in time and prove what thoughts were in a person’s head?

Burden shifting

The most common framework used to test the evidence in discrimination cases was spelled out by the U.S. Supreme Court in 1973. In McDonnell Douglas v. Green an employee believed his former employer’s employment practices were tainted by racial discrimination and bias due to his civil rights activities.

The court spelled out who needs to show what in order to be successful in most discrimination cases. This framework is normally customized to the facts of the case and the legal basis of the claim. The plaintiff has the initial burden to establish a “prima facie” case (the basis of the claim) of discrimination.

• He belongs to a protected class (in this case, an African American who engaged in protected activities of civil rights protests)
• He applied and was qualified for a job that his employer sought applicants;
• Despite those qualifications, he was rejected, and
• After his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualifications.

The burden then moves to the employer to establish a legitimate, nondiscriminatory reason for the employee’s rejection. The plaintiff then has an opportunity to show that reason is pretext, it’s fabricated in order to cover up the discrimination that occurred.

Overall the plaintiff retains the overall burden of proof of intent. There needs to be some evidence of intent (such as indirect evidence of a pattern of discrimination against one group or in favor of another group, unequal treatment that defies logic or double standards being enforced based on employees’ protected basis) for the plaintiff to succeed.

Direct evidence

To tip the scales of the burden shifting framework in your favor, “direct evidence” of discriminatory animus always helps. Statements by a supervisor showing a bias against you because of your protected status would help you carry your burden of proof. If blatant or severe enough, even a single comment, if it can be supported by credible evidence, may be enough to secure victory.

The more repeated and common the statements, the stronger the evidence of intent. These statements can include,

• A supervisor stating he wanted to fill a job with a male candidate, “Women have no business in construction,” and “Black people should only be in subservient positions.”
• A member of the Executive Committee, a decision making body for a University School of Medicine, stated that “‘two Chinks in the pharmacology department are ‘more than enough’” and in response, the Dean of the school laughed. That laugh was seen as evidence of discriminatory intent.
• An insurance agency manager responsible for selecting a trainee agent referred to an Hispanic agent as a “dumb Mexican.” The court ruled that even though the remark was not directed at the plaintiff and was made long after her non-hiring, nevertheless she too was of Mexican heritage and the earlier comment could be used as proof of discrimination against her.

Adverse impact

A plaintiff can have a successful discrimination case without a showing of intent by the defendant if the plaintiff can show sufficient evidence of adverse impact. This is a practice or policy that is neutral on its face yet adversely impacts a particular group so severely that it’s illegal. These cases can be complex, requiring statistical analysis and expert testimony (it’s as expensive as it sounds). They often involve large numbers of employees negatively impacted by an employer practice or procedure.

The U.S. Supreme Court decided Griggs v. Duke Power, a 1971 case involving a utility company. The company required a high school diploma or passing an intelligence test for certain jobs, even though there was no relation between those requirements and the ability to do the work. In the area where the utility was located, those without high school diplomas and who didn’t pass the tests were disproportionately African American. The Court ruled that even without a showing of racist intent, an employer could be held liable for a policy or practice that demonstrates an adverse impact on African Americans.

The framework for this type of case includes,

• Evidence that an employer’s practice, neutral on its face, has a disparate impact on the plaintiff’s group. This is normally shown through a statistical analysis that employment of a disproportionately large share of a particular group is negatively impacted.
• If that’s shown the defendant can defend itself by showing: a business necessity for the practice or policy based on a genuine business need and a relationship to the jobs in question or to successfully performing the jobs and the practice or policy.
• If the employer shows evidence of business necessity the plaintiff has the opportunity to show that other methods without a similar discriminatory effect would also serve the employer’s legitimate interests. If the employer’s legitimate ends can be served by a reasonably available alternative system with less discriminatory effects, then the present policies may not continue.

If you believe you have been discriminated against at work or while trying to be hired, please contact our experienced employment law attorneys at Hanan M. Isaacs, P.C.  Call 609-683-7400 or contact us online to schedule an initial consultation at our Central Jersey offices in Kingston.  You will be glad you did.