proving discriminationThere are quite a few ways that discrimination can manifest in the workplace. You might simply be treated worse because of who you are. You might feel as if a policy at your workplace is designed to discriminate against people like you. In these kinds of situations, you may know with certainty that you are the victim of discrimination. You may just be suspicious of motivations. Either way, consulting with an employment attorney to take stock of your environment and your situation will be helpful in determining how exactly you could prove a case of employment discrimination.

First thing you need to do to prove discrimination is to establish a “prima facie” case of discrimination – the first impression your case gives should be that your employer’s action resulted from discrimination. This is the first step of the McDonnell Douglas test, a framework the courts use to judge discrimination cases.

Some questions that you should be able to answer at this first stage, according to Workplace Fairness, are:

  1. Are you a member of a protected class? Protected classes under federal law can be found here. Keep in mind that gender identity and gender expression are included under the category of sex.
  2. Are you qualified for your position?
  3. Did your employer take adverse action, such as withholding promotion, not hiring you, or firing you?
  4. Were you replaced by someone not in the same protected class as you?

Workplace Fairness

However, Workplace Fairness does mention that “the law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force”—meaning, answering “no” to the fourth question doesn’t necessarily preclude you from bringing a case against your employer.

Once you establish sufficient reasoning that your employer’s action was discriminatory, the burden of proof shifts from employee to employer, to provide reasoning for their actions and show that it wasn’t discriminatory. Once they provide that, the burden is back on the employee to show that the employer’s reasoning was just a front for discrimination or a “pretext.”

Evidence of Discrimination

Most evidence of employment discrimination is going to be circumstantial. Evidence directly demonstrating an employer’s prejudice against your protected class status is the best way to prove discrimination, but this will rarely be present.

However, it is good to be mindful of what could qualify as direct evidence, or at least evidence strongly demonstrating the employer’s prejudice, if not an outright admission: a discriminatory note written to you, an insulting photograph, or anything else that demonstrates an explicit bias by your employer against a certain group.

Answering some additional questions will help you prove your case if all evidence is circumstantial, according to Workplace Fairness: does your boss treat you differently/worse than others outside your protected class, generally? Do you suffer derogatory comments related to your protected class from supervisors? Do those who are less qualified than you, but outside your protected class, advance above you in the workplace?

In addition to taking stock of your environment and looking for circumstantial evidence of discrimination, it is important to retain documentation related to company policy—especially if they have an anti-discrimination policy—and your own personnel file. If you’re suffering repeated instances of discrimination over time, keep a log of this, including the date, time and description of each incident.

Log Incidence of Discrimination

In this log of incidents, be sure to keep a list of witnesses as well, whom your attorney may want to reach out to.

Keep a log of your pay, as Find Law describes: “If you are successful in proving your claim your attorney may be able to recover your lost wages as damages.”

For help with your case contact the discrimination lawyers at Castronovo & McKinney for a free consultation.