Discrimination can be found when you are treated differently, or less favorably than other employees, for an illegal reason. In order to have an illegal discrimination claim, you must be part of a classes of people, known as protected classes. Protected classes include: Race, Color, Religion, National Origin or Ancestry, Sex, Age, Physical or Mental Disability and Veteran Status.
Types of Discrimination Claims
If you believe you have been discriminated against because you are a member of a protected class or category, you may bring a claim for:
Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category. Although there are still cases in which direct evidence of discrimination exists — a “smoking gun,” such as a text message from your manager telling you not to hire an applicant because of a race of the applicant’s race — these are rare. More often, an employee has to prove race discrimination using indirect evidence.
Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice is discriminatory —even if it was not intended to be discriminatory. The anti-discrimination laws make it illegal for a rule or practice to be more harmful to members of a protected class. For example, a strength requirement might screen out a greater number of female applicants for a job while requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect minority candidates.
Hostile Work Environment
A hostile work environment/unlawful harassment claim must include:
- Offensive conduct that is based your race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
- The discriminatory becomes a condition of continued employment, or the conduct is enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:
- Unlawful harassment may occur without economic injury to, or discharge of, the victim.
Retaliation
Retaliation happens when, as a result of making a verbal or written claim of discrimination, your employer treats you employee poorly or adversely as punishment for making the original complaint. Successful Retaliation claims involve the following:
- Securing evidence to show you employer’s treatment towards you worsened after you complained. Here, evidence that shows how you were treated before -complaining versus after complaining is helpful;
- Specifically complaining about the discrimination that you feel you are being subjected to in the workplace. For example, in a case of gender discrimination, you must state that you feel you are being treated differently because of your gender. Unlike general discrimination claims here Making the complaint does not require proof that you are 100% correct, just an honest and good faith belief
- Proof that you actually complained. In many instances, an employer will deny ever receiving a complaint and without evidence that you actually made the complaint, your chances of prevailing are slim.
How Do You Prove Discrimination?
There are two types of evidence that can be used to prove discrimination: direct and circumstantial.
Direct Evidence
Direct evidence is the best way to show that you experienced discrimination. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.
For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes. Although there are still cases in which direct evidence of discrimination exists — a “smoking gun,” such as a text message from your manager telling you not to hire an applicant because of the applicant’s race — these are rare. More often, an employee has to prove race discrimination using indirect evidence.
Circumstantial Evidence (Indirect Evidence)
Circumstantial evidence can include anything other than direct statements from your employer that allow for the assumption of discrimination. The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are often well-trained by their own attorneys to refrain from openly expressing their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.
If you do not have direct evidence against my employer, you can use circumstantial evidence to show that your employer has discriminated against you.
According to the “McDonnell-Douglas Test,” based upon a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:
- Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
- Were you qualified for your position? For example, if your job required you to be a licensed plumber, were you licensed?
- Did your employer take adverse action/negative against you which impacted the terms and conditions of your employment? Adverse action includes hiring, promoting, terminating, compensating and other terms and conditions of employment.
- Were you replaced by a person who is not in your protected class? Or was the promotion given to someone less qualified than you and not in your protected class? For example, in the case of gender discrimination, a less qualified male applicant. Another example is if you are disabled, were you replaced by someone who is not disabled?
If you can show at least these things, the law will presume, that since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.
The “circumstantial evidence” test is flexible. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. 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.
An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:
- Were you treated differently someone with the same experience, qualifications, and/or education, who is not in your protected class?
- Does your employer have a history of showing bias toward persons in your protected class?
- Are there noticeably few employees of your protected class at your workplace?
- Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in lower ranking positions?
- Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
- Are there statistics that show favoritism towards or bias against any group?
- Did your employer violate well-established company policy in the way it treated you?
- Did your employer retain less qualified, non-protected employees in the same job?
If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be successful in claiming that your protected class status caused the adverse employment action.
No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.
Employer Defenses
Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.
In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The court will decide if the non-discriminatory reason is valid or pretextual, meaning that the employer’s given reason for termination is not the actual reason but is intended to conceal the employer’s discriminatory conduct.
Given the nature of the relationship between and an employer and employee, an employer can always “sharpen their pencil” and come up with a non-discriminatory reason for termination. Once an employer offers this reason you will have to offer additional evidence of discrimination. If the employer cannot offer a legitimate reason for your termination, you may you have proven a case of discrimination. However, this is extremely rare.
Defeating Your Employer When Their Reason for Terminating You is to Conceal the Fact, They Discriminated Against You.
You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:
- The stated reason is factually untrue
- The stated reason is insufficient to have legitimately caused your termination (i.e., You are the first employee to be terminated for this reason)
- Your protected status is more likely to have motivated your employer than the stated reason
- Powerful direct or circumstantial evidence of discrimination
In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.
What Evidence is Needed if Your Employer’s Seemingly Neutral Policy, Rule or Neutral Practice Had a Discriminatory Effect?
Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create an assumption that the employer’s seemingly neutral policy, rule, or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. This means that the policy was necessary or fundamental to the functioning of the business. If your employer is able to show that the policy, rule, or practice was a business necessity, then you may still be successful with your claim if you are able to prove that your employer refused to adopt an alternative policy, rule, or practice with a less discriminatory effect.
What are Your Remedies or Damages if You Win Your Discrimination Case?
- Back Pay: Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
- Front Pay: Front Pay is lost future earnings resulting from the discrimination.
- Lost Benefits: Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
- Emotional Distress Damages:Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
- Reinstatement: Your employer could be ordered to rehire you.
- Punitive Damages: Punitive damages are intended to punish the employer for particularly egregious conduct.
- Attorneys’ Fees: In addition to the damages you can recover for your injuries, you can also win an award of attorneys’ fees, expert witness fees, and court costs.
