Discrimination in the workplace can be proven with direct or circumstantial evidence. In class action lawsuits, it can also be proven with evidence that the discrimination is a common practice.
Circumstantial evidence is the most common technique, though. Most states use a burden-shifting approach. The employer can rebut a prima facie case with a non-discriminatory reason for the alleged discrimination.
What is a workplace discrimination claim?
There are numerous state and federal anti-discrimination laws that apply to the workplace. Each one has its own definitions and limitations. However, an adverse employment action generally includes:
- a termination or discharge,
- refusing to promote someone,
- denying certain workplace benefits,
- pressuring an employee to quit,
- harassment, or
- reducing a worker’s pay or hours.
Protected classes generally include:
- gender and gender identity,
- sexual orientation,
- national origin,
- physical or mental disability, and
- marital status.
However, certain laws only cover specific kinds of discrimination. For example, the Age Discrimination in Employment Act (ADEA) only covers age discrimination.
How can I prove a discrimination case?
Discrimination cases are difficult to prove because employers will hardly ever openly admit that they were singling out particular groups of people for disparate treatment. Because of this difficulty, courts have allowed workers to prove a discrimination case with 3 types of evidence:
- direct evidence of discrimination,
- circumstantial evidence of discrimination, or
- evidence that the employer has a pattern or practice of discriminatory conduct.
What is direct evidence of workplace discrimination?
Direct evidence of workplace discrimination is anything that explicitly declares that the employer was behaving discriminatorily. Examples of this kind of evidence include:
- an email telling a supervisor to demote a worker because of her religion,
- a written company policy to never hire people of a certain race, even if the policy does not mention racial discrimination, or
- statements by supervisors that they will never promote women over a certain level.
Direct evidence is rare in workplace discrimination claims. Most of the time, employers or bosses will not make things so explicit.
How does circumstantial evidence work?
Far more common is circumstantial evidence of workplace discrimination. Circumstantial evidence, also known as indirect evidence, includes facts that only suggest that there was discrimination. It leaves open the possibility that there is a non-discriminatory reason for the adverse employment action. Courts generally use the following burden-shifting approach for these cases:
- the worker has to establish a prima facie case of discrimination through circumstantial evidence,
- the burden then shifts to the employer, who has to show that there is a non-discriminatory reason for the employment action, then
- the burden then shifts back to the worker, who has to show that the employer’s proffered reason was just pretextual.
This is known as McDonnell Douglas burden shifting. The name comes from the U.S. Supreme Court opinion that created the approach for an employment discrimination case.1
To establish a prima facie case in a discrimination lawsuit, workers have to show that they were:
- a member of a protected class,
- qualified for a position, promotion, or for their current job,
- subjected to an adverse employment action or had their job application rejected, and
- there are signs that the motivation for the action were discriminatory, like if the available job remained open or someone not in the worker’s protected class received the workplace benefit.2
If the worker can establish a prima facie case, it creates a presumption of discrimination. The burden then shifts to the employer to overcome that presumption.3
The employer can overcome the presumption of discrimination by advancing a legitimate and non-discriminatory reason for the adverse employment outcome.
- the worker was not actually able to perform the functions of the job,
- a coworker was better qualified for the promotion or workplace benefit, or
- the employer had a reasonable basis for thinking that no one in the protected class could efficiently perform the job.
The burden then shifts back to the worker, who has to show that the employer’s reason is just a pretext for the discriminatory act. This often requires undermining the allegedly non-discriminatory reason for the termination. To do this effectively, workers tend to need the legal advice of an employment attorney from a reputable law firm.
Can I use evidence of a pattern of discrimination?
An employer’s pattern or practice of discrimination can also be used in a workplace discrimination claim. This is often relegated to class action lawsuits, though.
For example: Female workers claim that, instead of posting job openings, promotions, or training opportunities for all employees to see, supervisors directed them to their favorite workers, who were disproportionately men.4
What is the process for filing a lawsuit?
The process for filing a lawsuit for workplace discrimination depends on the law that the worker is invoking. Many anti-discrimination laws do not allow workers to take their cases straight to court. Many of them provide administrative procedures to resolve the case. These laws require workers to exhaust these potential remedies, first.
One anti-discrimination law that is commonly invoked by workers is Title VII of the Civil Rights Act of 1964. This federal law has an administrative procedure that has to be exhausted before workers take their claim to court. Workers first have to file a charge with their local Equal Employment Opportunity Commission (EEOC) office.
This has to happen within 180 days of when the allegedly discriminatory conduct took place. The EEOC will then try to resolve the dispute through mediation or arbitration. It may conduct its own investigation, or issue a “right to sue” letter. Only after receiving this letter can the worker bring their case to court.
Ignoring these administrative procedures can hurt a worker’s case. If they file their discrimination complaint in court before exhausting their administrative remedies, the judge will refuse to hear it. This setback can make it difficult to file the claim correctly before the statute of limitations has expired.
What is the law in California?
California has its own employment law that protects workers from discrimination. This law is the California Fair Employment and Housing Act (FEHA). The FEHA works in addition to the federal anti-discrimination law, Title VII.
There are 2 ways to prove discrimination under the FEHA:
- disparate impact, and
- disparate treatment.
Disparate impact claims revolve around employment practices that seem to be non-discriminatory. In reality, though, these practices have a negative impact on a protected class under the FEHA and cannot be justified by business necessity.5
To prove a disparate impact claim under the FEHA, workers have to prove that:
- the employer was covered by FEHA,
- the worker was an employee with the defendant employer, or had applied for a job,
- the employer had an employment or hiring practice that had a disproportionately adverse effect on the worker’s protected class,
- the worker was harmed, and
- the employer’s discriminatory practice was a substantial factor in causing the worker’s harm.6
Disparate treatment claims are when an employer allegedly treats a worker less favorably than others because of the worker’s protected trait.7 They may also accompany a wrongful termination claim.
To prove a disparate treatment lawsuit under the FEHA, workers have to present evidence that:
- the defendant employer is covered by the FEHA,
- the worker was an employee of the defendant, or applied for a job,
- the worker was discharged, constructively discharged, not hired, or suffered some other adverse employment decision,
- the worker’s protected status was a substantial motivating reason for the adverse action or unfair treatment,
- the worker was harmed, and
- the employer’s conduct was a substantial factor in causing the worker’s harm.8
The FEHA is generally considered to be worker-friendly. Other states may not offer as much protection against workplace discrimination.
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
- See, e.g., Abed v. Western Dental Services, Inc., 23 Cal.App.5th 726 (2018).
- See, e.g., Guz v. Bechtel National, Inc., 24 Cal.4th 317 (2000).
- Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).
- Jumaane v. City of Los Angeles, 241 Cal.App.4th 1390 (2015).
- California Civil Jury Instructions (CACI) No. 2502.
- Mixon v. Fair Employment and Housing Commission, 192 Cal.App.3d 1306 (1987).
- CACI No. 2500.