How do I make a case for discrimination against my employer?

Proving Employment Discrimination or Retaliation: Understanding the Evidence

To succeed in a claim for employment discrimination or retaliation, an employee needs to show evidence of their employer’s discriminatory intent. The type of evidence required depends on the circumstances and the legal theory being used.

Direct Evidence: Direct evidence is straightforward proof that directly links bias to unfair treatment. This could include things like company memos, statements from managers, or policies that clearly demonstrate discriminatory intent. However, if a statement requires interpretation to show discrimination, it’s not considered clear, direct evidence.

Indirect/Circumstantial Evidence: Most employees rely on indirect or circumstantial evidence, which follows a three-step process established by the courts:

• Prima Facie (on its face valid as a starting point) Case:

1. 1. • The employee must demonstrate:
        • They belong to a protected class (e.g., based on race, gender, age).
        • They were qualified for a job benefit (such as a promotion or raise).
        • They were denied that benefit.
        • In retaliation cases, the employee must also show they engaged in a protected activity (such as reporting discrimination), faced a negative job action (such as demotion or termination), and there’s a link between the two.

• Employer’s Rebuttal:

1. 1. • If the employee establishes a prima facie case, the employer must provide a legitimate, non-discriminatory reason for their actions.

• Pretext:

1. • The employee then needs to show that the employer’s reason is just a cover for discrimination. They must demonstrate that the employer’s explanation isn’t credible and that the real reason behind the action was discriminatory.

Pattern and Practice: A group of employees can allege that an employer has a pattern or practice of discriminating against a protected class. To do this, they need to show consistent and intentional unfair treatment as part of a standard policy. For a class action lawsuit, they must identify a common discriminatory policy. Statistics can be used to demonstrate significant treatment disparities, but personal stories and other evidence may also be necessary- or even the exclusive proof. Once a case is established, employers can present their own evidence to dispute the claims.