Proving Employment Discrimination

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Most Common Employment Law Issues:

What Do I Have to Show to Prove Employment Discrimination?

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

What Is Pretext?

A pretext is a false reason given to hide the real intention or motive for a legal action. For example, an employer might try to show that he or she was downsizing when firing the employee.

If these facts are proven, a court will assume that the employer intended to engage in discrimination. But, the case is not over at this point. The burden shifts to employers to prove that they were motivated by a lawful purpose, such as the employee’s qualifications.

The employer does not have to prove that the reason given is the actual reason. The employer could give a bad justification, like hiring preference for relatives, and still win. An employer can give a false reason and still win if the plaintiff is unable to prove that the reason is false. 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 prove that the employer’s legitimate reason for firing or refusing to hire the employee was a “pretext.” An employer may claim that an employee was fired for downsizing purposes, but it is a pretext if the employer hires a replacement a week later.

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

What If the Employee Proves the Employer Was Lying?

The ultimate victory is proving that an employer gave a pretext for either firing or not hiring the plaintiff. The plaintiff may show that a pretext was given to cover up the discrimination. Proving that the employer was lying will help the employee, but the case is not automatically won. A judge or jury will be the decision-maker and will decide the outcome of the case.

For example, an employer may claim that an employee was fired for downsizing purposes. But, if the employee shows that the reason was due to gender, then the employee automatically win. If the reason for the false pretext was that the manager did not like the employee’s personality, then the case is up to judge or jury.

What If the Employer Has More than One Purpose?

Cases get complicated when employers use both discriminatory and non-discriminatory reasons to:

To win a case, the employee has to prove that it was the discriminatory purposes that lead to the loss in job status. The case will likely go to trial if an employer uses both legitimate and non-legitimate reasons because there is a high possibility of discrimination. Once at trial, the employee has the burden of proving that the discrimination was a factor in the employer's decision.

What If the Manager Discriminated against Me without the Employer's Knowledge?

Employers are typically vicariously liable for the actions of their employees. This means managers represent employers, as long as managers were acting with the employer’s authority during working hours. Thus the employer is liable for a manager’s discrimination. If managers act outside of their authority, then employers will not be liable because they had no power over their managers.

Is the Manager Liable for the Discrimination?

A manager acting as an agent of the employer, but does not share the employer's discriminatory intent, is not liable for discrimination. If the manager was a discriminatory agent, then the manger could be liable regardless of the employer’s own intent. It is rare for managers to be held responsible for employment discrimination because managers rarely have the money or insurance to cover any lawsuits.

Should I Consult an Attorney?

Yes. Employment discrimination claims are complicated due to varying procedural laws. Experienced attorneys can be valuable in helping any small business owner in discrimination issues. Your employment lawyer can help gather evidence, or seek additional remedies.

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Last Modified: 10-20-2014 12:38 PM PDT

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