You might believe you have a strong case of discrimination against your employer, but proving employment discrimination claims can be difficult. Let’s review what evidence it takes to prove a discrimination claim and what steps are involved in proving it.
What Evidence Can Be Used to Prove Discrimination?
The best way to prove discrimination is direct evidence against an employer, such as a statement, e-mail, letter, or memo that shows the employer took action against you based on a discriminatory motive. For example, you would have direct evidence of discrimination if your employer specifically says you’re being let go because you’re pregnant or sends an e-mail to staff saying only employees under age 60 are eligible for promotion.
In most cases, though, direct evidence isn’t available. Instead, you have to rely on circumstantial evidence to prove your case. Circumstantial evidence is evidence that would make a person believe discrimination occurred but is not direct proof of it.
For example, your boss might not say he’s firing you because you’re pregnant, but he might make a comment about how pregnant women aren’t very productive and then fire you a week or two later.
To win a case using either direct or circumstantial evidence, you need to show that a discriminatory reason more likely than not motivated your employer’s action against you. When circumstantial evidence is involved, a three-step test called the McDonnell Douglas framework is typically used.
Steps for Proving Most Employment Discrimination Claims
Prima Facie Case
First, an employee needs to make a “prima facie” case of discrimination. In Latin, prima facie means “at first look” or “on its face.”
To make a prima facie case, you need to show four things: (1) you belong to a protected class based on your age, gender, race, etc.; (2) you were qualified for the position and performing according to your employer’s legitimate expectations; (3) your employer took some adverse action against you, such as firing you or demoting you; and (4) your employer treated other employees who are similar to you but not in your protected class more favorably.
To give an example, for age discrimination you could show that you were over the age of 40; you were qualified for your position; your employer fired you; and your employer replaced you with a person under the age of 40.
Legitimate, Non-discriminatory Reason
Second, if you make a prima facie case of discrimination, then your employer has to provide a “legitimate, non-discriminatory reason” for the action it took against you.
For example, your employer might say it fired you because you violated a company policy or your performance was poor. Your employer doesn’t have to prove the reason, just provide a legitimate reason.
Third, if your employer provides a legitimate, non-discriminatory reason, which they can almost always do, then you need to show that its reason is merely “pretext,” meaning a cover-up, for discrimination.
For example, if your employer says it fired you because you were late for work three times, then you could show you were actually only late one time; or, if you were late three times, you could show that your employer has a policy of not firing anyone unless they’re late five times. Casting doubt on the employer’s reason, or entirely disproving it, allows a court or jury to infer that the employer’s decision to fire you was likely based on a discriminatory motive.
Disparate Impact Cases
In some cases, your employer might have what seems to be a neutral policy or practice, but it has a discriminatory effect on you. For example, an employer might require that everyone who works in a certain position have a bachelor’s degree. This policy might seem neutral on its face, but it might prevent older applicants from being hired or promoted because when they were of college age fewer people went to college.
To win a disparate impact case, your employer would need to show that the practice was a business necessity. Even if your employer shows it was a business necessity, you can still win if you prove the employer refused to adopt a policy or practice that is less discriminatory.
Proving an employment discrimination claim usually isn’t easy to do, but with the help of a skilled attorney and some evidence on your side you might be able to prove your case.