Proving Employment Discrimination

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Most Common Employment Law Issues:

What Do I Have To Show To Prove Employment Discrimination?

When suing an employer for discrimination under the 1964 Civil Rights Act, there are several things that the employee must prove. To make an initial (“prima facie”) case for discrimination, the employee has to prove several facts at the outset:

  1. The employee, or prospective employee, is a member of a protected class (such as a racial minority).
  2. The employee applied for a job for which the employer was hiring, and was qualified for the position.
  3. The application was rejected.
  4. The position remained opened and the employer sought applicants with similar qualifications.

What Is Pretext?

Once these facts are proven, a court will assume that the employer intended to engage in discrimination. However, the case is not over at this point. The burden now shifts to the employer to prove that they were motivated by a lawful purpose, such as the employee’s qualifications. The legal reason for discrimination is known as pretext. In the case of firing an employee, the employer might try to show that he or she was downsizing, or that the employee was not performing to the employer’s standards.

Note that the employer does not have to prove that the reason given is the actual reason. The employer could give a very bad reason, like preference for relatives, and still win. Indeed, the reason given by the employer could be false and as long as the plaintiff is unable to prove that the reason given is false, the employer wins. The plaintiff, at all times, bears the burden of persuading the judge or jury that discrimination exists.

How Does the Employee Respond to Pretext?

At this point, the employee has one last chance to win the case. The employee must show that the employer’s legitimate reason for firing or refusing to hire the employee was a “pretext.” For example, if an employer claims that an employee was fired because the position was eliminated, but then hires a replacement a week later, downsizing was clearly not the real reason the person was fired.

Employment discrimination can often be difficult to prove. One good way to prove it is the use of statistics. For example, if an African-American applicant can show that an employer consistently hires less-qualified white applicants; this is strong evidence of discrimination on the part of the employer. During discovery, human resources records will be useful for this purpose.

What If the Employee Proves The Employer Was Lying?

Showing that the employer was lying will help the employee greatly, but the employee does not automatically win if the pretext was shown to be false. The judge or jury may believe that the disproving pretext can be an automatic win for the plaintiff, but that decision is up to the decision-maker. The ultimate victory for the employee though, is proving that the employer gave a false pretext for the discrimination and that the reason for the false pretext was to cover up discrimination.

For example, if an employer claims that reason the employee was fired was downsizing and the employee shows that the reason the employer fired the employee was due to the employee’s gender, than the employee does automatically win. If the employee proves that the pretext was false, but the reason for the false pretext was that the manager did not like the employee’s personality, than the case is up to judge or jury.

What If the Employer Has More Than One Purpose?

In cases where the employer has both a discriminatory purpose and a non-discriminatory purpose for terminating, demoting, transferring, or not hiring an employee, the employee has to prove that it was the discriminatory purposes which lead to the employee’s loss in job status. In essence, an employer who has both legitimate and non-legitimate reasons for terminating an employee means that the case will likely end up at trial since the possibility of discrimination is high. However, once at trial, the employee has the uphill battle of actually proving that the discrimination was a factor in the employer’s decision-making process.

What If the Manager Discriminated against Me Without the Employer’s Knowledge?

Employers are typically vicariously liable for the actions of their employees. As long as the manager was acting with the employer’s authority during working hours, the manager represents the employer. Thus the employer is liable for a manager’s discrimination. If the manager acted outside his authority or outside the office though, the employer had no power over the manager and the employer would not be liable.

Is The Manager Liable For The Discrimination?

If the manager was simply acting as an agent of the employer and did not share the employer’s discriminatory intent, the manager would not be liable for the employer’s own discrimination. If the manager was a discriminatory agent, then the manger could be liable regardless of the employer’s own intent. However, it is very rare for the manager to be held responsible for employment discrimination since the manager is rarely the one who the money or insurance to cover any lawsuits.

Should I Consult an Attorney?

Pursing an employment discrimination claim against an employer is complicated because procedural laws vary depending on where and when you file your claim. A lawyer can help you investigate and pursue any additional remedies.

An experienced attorney in employment discrimination can be extremely valuable in assisting any small business owner in discrimination issues. The response to a complaint and the gathering of relevant evidence often requires an attorney with experience.

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Last Modified: 02-04-2013 12:29 PM PST

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