Man degrading female coworker

Types of Evidence in a Workplace Discrimination Claim

By Thomas McKinney

Workplace discrimination is a big problem and those employees who have suffered discriminatory actions in the workplace deserve to seek those legal remedies available to them. Employment discrimination occurs when an adverse employment action is taken against an employee due to their membership in a protected class. That adverse employment action may have been termination, demotion, promotion refusal, or a reduction in pay or hours, among other things. Protected classes under the law will include things like a person’s age, race, gender, gender identity, sex, sexual orientation, national origin, and religion.

If you believe you have experienced workplace discrimination, you may want to bring a discrimination claim seeking legal redress for the harm you have suffered. You will need, however, proof of the alleged discrimination in order to bring a viable claim. Workplace discrimination can be difficult to prove. There are, however, a few different types of evidence that may work to support your claim.

Types of Evidence in a Workplace Discrimination Claim

One of the most common types of evidence used in workplace discrimination claims is circumstantial evidence. Circumstantial evidence goes to prove the point alleged by inference as opposed to directly proving a fact. In using circumstantial evidence, the McDonnell Douglas burden shifting comes into play. You see, an employee putting forth circumstantial evidence in a discrimination claim must present evidence that they are a member of a protected class. They must also prove that they were qualified for their job position and suffered an adverse employment action. Lastly, the employee must present evidence that they were replaced with someone else who is not a member of their protected class. 

Should the employee be able to establish these things with circumstantial proof, then the burden shifts to the employer. The employer is then tasked with providing evidence showing that there was a legitimate, non-discriminatory reason for the adverse employment action taken against the employee. If the employer can do this, the burden shifts back to the employee. The employee must be able to show that the employer’s alleged legitimate reason for taking the adverse employment action against the employee was a mere pretext for their discriminatory motive or was in combination with a discriminatory motive.

Direct evidence is sometimes used in discrimination claims, although not often. Direct evidence is evidence that directly supports the discrimination. There is no need for making any inferences or presumption like there is with circumstantial evidence. As you may have surmised, it is a rare case indeed where an employer leads a direct evidence trail, such as an email or memo, that explicitly states they are taking an adverse employment action against an employee due to a discriminatory reason. It does, however, happen on occasion. 

In addition to circumstantial and direct evidence, there is also pattern and practice evidence used in some types of employment discrimination cases. Pattern and practice evidence is used in class action lawsuits of employment discrimination cases. The evidence is used to demonstrate that the employer engaged in an ongoing patter of discriminatory actions in the employment setting.

Employment Law Attorneys

The team at Castronovo & McKinney will work with you to gather the appropriate evidence to support your workplace discrimination case. Documentation of the discriminatory practice is critical. We will help you throughout the discrimination claim process. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.