Here’s How To Identify and Prove Discrimination in the Workplace

Workplace discrimination is one of the most unfortunate incidents that can happen during employment.

While an instinct or gut feeling is often enough for a person to know they’ve been on the receiving end of disparate treatment in the workplace, proving it in court is a different matter. The burden of proving discriminatory treatment falls on the plaintiff.

Below are a few tips on how to successfully follow through on a discrimination claim.

Know the federal or state laws that may apply

The first step is to know which laws protect you from discriminatory treatment. Some examples of relevant federal and state laws include the following:

• • According to Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate against someone on the basis of race, religion, color, national origin, or sex.

• • The Age Discrimination in Employment Act of 1967 prohibits the discrimination of a person based on their age. Those who are 40 years old and above may use this federal law as basis for a claim.

• In California, Chapter 6 of the California Fair Employment and Housing Act (FEHA) can also apply. It is unlawful employment practice for an employer to base employment decisions on race, religious creed, genetic information, marital status, sex, gender, gender identity, veteran or military status, and other factors.

Furthermore, anti-discrimination laws in California often have broader coverage than federal laws. It’s important to keep this in mind when deciding to officially file a case.

For instance, FEHA “allows the employee to obtain all relief generally available.” Meanwhile, the American Disabilities Act imposes limits on the amount of damages a plaintiff can recover in a discrimination case.

Make use of direct and circumstantial evidence

The two types of evidence used to bolster a discrimination claim are direct and circumstantial evidence.

The former may consist of explicit statements made by an employer or manager that clearly demonstrate an action against one’s protected status. A verbal announcement or written memo saying that an employee is being laid off because of their religious practices is one example of direct evidence.

Acquiring direct evidence is not easy. Many employers issue verbal or written statements that are too ambiguous to be construed as discriminatory at face value. That’s why a number of plaintiffs mainly rely on a string of circumstantial or indirect evidence to back up their cases.

In the landmark 1973 case of McDonnel Douglas Corp vs. Green, the Supreme Court ruled that it is enough for an employee to establish a prima facie (upon first impression) case for a presumption of discrimination. To do that, the following four conditions must be fulfilled:

1. 1. The employee is a member of a protected class (e.g., people of color, foreign nationals, LGBTQ+, etc.);

1. 1. The employee is qualified for the job position which they applied for or intended to fulfill;

1. 1. The employer took adverse action against the employee, such as termination or demotion; and

1. The employer hired someone else who is not a member of a protected class.

Jurisprudence has shown that the use of circumstantial evidence is flexible in a number of cases. For example, the plaintiff doesn’t need to always fulfill the fourth condition mentioned above. A claim for disparate treatment in the workplace can withstand the burden of proof if a number of scenarios are applicable, such as:

• • An employer makes offhanded rude comments directed at the protected class status of employees.

• • An employer has a trend of retaining or promoting less qualified individuals over those with protected status who are qualified for the job.

• • An employer routinely singles out employees of a protected class for punitive measures or adverse treatment.

• • Other employees who are members of a protected class have voiced out their own experiences of discrimination with a manager or supervisor.

• There was a violation of the company’s anti-discrimination or harassment policies.

Collect documentation that can help reveal discrimination

Evidence of workplace discrimination can be contained in a multitude of things. A plaintiff may put forward relevant office memoranda, e-mail exchanges, and social media posts to support their claim.

Medical records may be used to determine the extent of personal damages suffered by a plaintiff especially when discriminatory treatment has caused mental health problems.

Pay slip records can help employees recover months of lost wages following termination due to discrimination.

To further strengthen a case, current and/or former employees may also be invoked as witnesses who can corroborate information contained in files or documents.

Lastly, it’s important to seek support from legal professionals who specialize in employment and labor laws. If you or any of your colleagues have experienced discrimination at work, contact Hogue & Belong Attorneys at Law.