Employment discrimination is a form of discrimination against a protected class of individuals. Pursuant to Title VII of the Civil Rights Act of 1964, it is illegal for employers to discriminate against employees based on one’s sex, race, color, national origin, and religion. Title VII applies to employers with 15 or more employees, including federal, state, and local governments.

How Do I Prove Employment Discrimination?

If you believe you have experienced employment discrimination, you will need to make a “prima facie” case of discrimination. This will generally require you to prove the following:

  1. You are a member of a protected class by race, sex, national origin, or color;
  2. You suffered an adverse job action such as a demotion, loss of benefit, firing, etc.;
  3. Your employer treated similarly situated employees who do not share your protected characteristic more favorably; and,
  4. You were qualified for the position.

What is Pretext?

In the employment context, pretext is a false reason given for an adverse employment action that covers up the employers’ true motives. For example, if you are fired from employment because it is discovered that you are Catholic, an employer may try to show that there was a company restructuring which led to your firing instead of your religion.

How is Pretext Determined?

There is no one way to prove pretext, but there are numerous ways in which pretext for unlawful discrimination can be inferred.

  • Changing Reason: An employer who keeps changing her justification for firing an employee is more likely lying than someone whose reasoning remains unchanged.
  • Delay in Dealing with Employee Behaviors: If the employer claims that an employee is fired for their foul language, poor driving, inattentiveness to detail, etc., but has employed the employee for a period of time and has never noted or disciplined the behavior in the past, it is more likely that the reason is exaggerated.
  • Deviation from Policy: Employers who have never fired employees for failing to lift 25 pounds and then suddenly terminates a recently-disabled employee for that very same reason is more likely unlawfully discriminating against the employee.
  • Timing: Proximity in time between a protected activity and the adverse employment action allows the factfinder to infer retaliation. The shorter the time frame, the stronger the evidence for pretext.

How Else Can I Bolster My Case Against My Employer?

An unlawful discrimination case can be bolstered if you can also provide witness testimony supporting your case. For example, a witness may have overheard your employer make derogatory comments about you based on your membership in a protected class. Witnesses can also testify as to their credentials. If you are passed up for a promotion, the witness who receives the promotion can testify as to their credentials. But if their qualifications are weaker than yours, one can infer employer discrimination.
Any paperwork you have demonstrating your stellar employment can also strengthen your case, especially if you are passed up for promotion or fired for poor performance. Performance reviews or informal congratulatory emails praising your work will be very helpful in supporting your claim.

Can My Employer Be Liable for Discrimination by Its Employees?

Yes, employers are typically vicariously liable for the actions of their employees. In that regard, if your manager unlawfully discriminates against you, the employer can be liable for the manager’s discrimination. Notwithstanding, if the manager is acting outside of her authority, the employer would not be liable for the resulting discrimination.

Can a Manager Be Personally Liable for Employer Discrimination?

A manager that is directed by an employer to carry out the employer’s unlawful discrimination does not himself become liable for employer discrimination. A manager acts as an agent of the employer, but does not share the employer’s discriminatory intent, and therefore will not be liable for discrimination.

Should I Consult an Attorney?

Employment discrimination claims are complicated and require a lot of evidence. For this reason, it is to your advantage to hire an employment law attorney. A skilled attorney can help assess your case and can represent you in court during litigation. An attorney can also help you gather the necessary information to prove you experienced unlawful discrimination.