How To Prove Discrimination
The evidence needed to prove a discrimination claim varies depending on the type of discrimination alleged. There are two types of prohibited discrimination: disparate treatment and disparate impact. Disparate treatment covers intentional discrimination. Disparate impact covers policies that appear neutral but actually have an impact on a protected class (race, color, religion, sex, national origin, disability or age).
An employer engages in disparate treatment discrimination if he or she intentionally discriminates against you based on your membership in a protected class. This means that, among other things, an employer cannot decide to fire you because you are Asian, or refuse to promote you because your family is from Holland, or pay you a lower wage because you are a woman.
You can prove discrimination either directly or circumstantially.
- Direct evidence
Direct evidence of discrimination is the best kind of evidence, but it is very difficult to get. Direct evidence is a policy or statement made by an employer that demonstrates a bias toward a particular group and is linked to an adverse employment action (such as failure to hire, termination, transfer, demotion, etc.). In order to prove discrimination, you must have actual evidence that your employer discriminated against you because of your race, color, national origin, religion, etc. The evidence may be a statement by the employer (for example, an employer could specifically say that you are too old for a job), or it may be a document (for example, a memo from one supervisor to another cautioning against hiring Asian employees).
Example: Olivia alleges she was denied a promotion because of her sex. In particular, she alleges she was rejected because the employer believed her childcare responsibilities would interfere with her ability to work the long hours required in the new job. Olivia claims she made clear in her interview that childcare would pose no problem. Two company employees testify they heard the hiring supervisor say that a woman with young children would not be able to fulfill the requirements of the job Olivia sought. The investigation further reveals the hiring supervisor did not ask male applicants whether they had children and, if so, whether their childcare arrangements could accommodate the demands of the job. There is direct evidence the company's stereotypes about female employees with children affected its decision not to promote Olivia.
To constitute direct evidence of discrimination, evidence that an employer or potential employer had stereotypes about a group must be connected to the employment decision. General evidence of stereotypes is not enough to prove discrimination; there must be a link between the discrimination and the employment action. For example, an employer's general statement that "women are unreliable" would not be direct evidence of discrimination unless it was connected to a specific employment action (such as a failure to promote, a demotion or a termination).
- Circumstantial evidence
While general stereotypes are not enough to provide direct evidence of discrimination, stereotypes, along with other evidence, can be used as circumstantial evidence of discrimination. Few people have evidence of direct statements or policies that prove discrimination. When you don't have this kind of direct evidence, you can use circumstantial evidence to prove your employer or potential employer treated you differently than someone else based on your membership in a protected class.
Circumstantial evidence is evidence that is created by looking at all the circumstances surrounding an event. An employer may not make a discriminatory statement, but the way he or she acts can imply he or she was acting discriminatorily. Evidence showing your employer treated you differently from employees who are not in your protected group is circumstantial evidence of discrimination. For example, suppose you are black and your employer fires you for not following the company dress code. You can present circumstantial evidence of discrimination by demonstrating that white employees with similar positions as you also violated the dress code, but were not fired.
Other types of circumstantial evidence include:
- evidence that you were fired and replaced by someone not in your protected class;
- evidence that an employer or potential employer hired or promoted someone less qualified than you and not in your protected class; and
- evidence that after rejecting you for a position for which you were qualified, an employer kept the position open and continued to accept applications.
Once you've offered evidence indicating the employer may have an illegal bias, the employer can respond. The employer will usually offer a nondiscriminatory reason for the employment decision. For example, your employer could argue you repeatedly violated the dress-code policy despite the employer's warnings. According to the employer, your failure to follow orders was the real reason the employer fired you.
It is then up to you to demonstrate that the employer's nondiscriminatory reason for an adverse employment decision is actually a pretext for discrimination. You can do that by presenting evidence the employer is lying about the nondiscriminatory reason or by presenting additional evidence showing the employer was biased. For example, you could offer evidence showing this was the only time you violated the dress-code policy but other employees had repeatedly violated it and were not fired.
Intentional discrimination is not the only type of discrimination. An employer can also be guilty of discriminating if he or she enacts a policy, procedure or job requirement that has an adverse impact on one group of employees or potential employees. This means an employer cannot use a policy that appears neutral (e.g., a preemployment exam, a dress code, height and weight requirements, or an education requirement) to screen out employees the employer considers undesirable. For example, a policy requiring applicants to pass a physical agility test could have an adverse impact on women. A policy prohibiting employees from wearing hats could have an adverse impact on some religious groups.
Proving disparate impact discrimination can be difficult. You may use statistical disparities as evidence the employment policy has a disparate impact, but the statistical difference must be significant. For example, suppose an employer has a physical test as a requirement for employment. Ninety-five percent of the men who take the test pass while only 3 percent of women pass. This is a significant statistical disparity, which could be considered evidence of discrimination. But if the statistical difference was smaller--55 percent of men pass and 35 percent of women pass--it is not as clear the exam has an adverse impact.
Is there a legitimate business reason?
Once you show that an employment policy has an adverse impact on one group, the employer must present evidence to prove there is a legitimate business reason for the policy. To do this, the employer must prove the policy is related to the job requirements. For example, if the employer requires a physical exam, he or she must be able to show the abilities tested in the exam accurately reflect an applicant's ability to successfully perform the job.
Example: A county prison has a height and weight requirement for guards. The requirement excludes 41 percent of female applicants and only 1 percent of male applicants. There is no evidence that the height and weight requirements have any relationship to strength. Although the policy appears neutral, it has a disparate impact on female applicants and discriminates against them on the basis of their sex.
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If an employer or potential employer ever makes any direct discriminatory comments be sure to keep notes on the comments and remember whether anyone else heard him or her make the comments. In addition, keep all documents the employer or potential employer gives to you.