Employment discrimination is unequal treatment on the job. According to state and federal laws intended to protect workers from unfair treatment, employers are prohibited from discriminating against employees belonging to certain protected groups based on race, age, color, national origin and more.

The Equal Employment Opportunity Commission (EEOC) is the governmental agency authorized to enforce employment discrimination laws. Most discrimination complaints must first be filed with the EEOC in order to see action. Employees have 180 days from the date an EEOC charge is filed to file a law suit in court, and may do so by requesting a Notice to File Suit from the EEOC.

Establishing a Primae Facie Case for Employment Discrimination

Establishing a primae facie case for employment discrimination involves meeting four basic requirements using circumstantial evidence. Employees are in an even better position to claim employment discrimination when there is direct evidence, such as a memo showing an employer has made explicitly discriminatory comments. Even without direct evidence, employees can use patterns of disparaging remarks and other circumstantial evidence to show:

  1. The employee was qualified for the position.
  2. The employee belongs to a group protected under employment discrimination law.
  3. The employee was subject to an adverse employment decision.
  4. Someone outside the protected group benefited from the decision or the position remained open and the employer kept looking for other qualified employees after the decision was made.

These four elements help establish a presumption of employment discrimination that courts will deem true unless an employer can prove otherwise.

Burden Shifts

At this point in an employment discrimination case, the burden of proof shifts to the employer. A company must show that the adverse employment decision was not based on the employee’s protected status; rather, it was based on legitimate, non-discriminatory reasons. If the employer is able to successfully prove these reasons, the burden of proof shifts, once more, to the employee.

It is not very difficult for most employers, in the absence of direct evidence, to show some other, legitimate reason for an employment decision. Many employees point to poor job performance or lack of skills or job training. Employees should be prepared to refute these claims in order to successfully establish a case.

Pretext

If an employer is able to show that there were non-discriminatory reasons for an adverse employment decision, an employee must show that those reasons were, in some way, a mere cover up for discrimination. In other words, it’s up to the employee to prove that the reasons proffered by an employer are pretext for violations of employment discrimination law.

While there are a number of ways to do this, one of the most fundamental ways to show pretext is to prove that an employer has lied about the underlying reasons for the decision or to present evidence showing that the employer’s reasons have no basis in fact. Another way to prove pretext is to show that, even though the employer’s reasons are factual, the employer was not motivated by those reasons or that the reasons were not enough to warrant an adverse employment decision.

When an employee is able to successfully prove pretext, the primae facie case stands. It is then up to the employer to offer affirmative defenses in response to the employee’s allegations.

Mixed Motives

An employee need not show that every reason an employer offers as rationale for an adverse decision was discriminatory. The mixed motive doctrine holds that employees need only show that discrimination was “a” factor which motivated an employer to act in violation of the law.

The mixed motive doctrine has important impact on the way that damages and relief are decided. If discrimination was not the sole factor resulting in an adverse employment decision and an employer can show that the same decision would have been made in spite of the alleged discrimination, the employee may only be entitled to injunctive relief or declaratory judgement, rather than the monetary damages that many employees hope for.

Vicarious Liability

What if a manager or co-worker is discriminating against an employee? Can a company be held liable for the discriminatory actions of its workers? The answer is yes. Under the doctrine of vicarious liability, an employer may be held liable for the actions of its workers when a supervisor creates a hostile work environment that singles out employees of protected groups. This is called unlawful harassment.

Employees should be careful to note that the definition of a supervisor is extremely important in a workplace harassment case. For instance, a co-worker who constantly makes discriminatory remarks may not qualify as a supervisor if the employer has not empowered her with the ability to make tangible employment decisions, such as hiring or firing.  Courts have ruled that even when there is, in fact, harassment, unless it is perpetuated by a supervisor, an employer will not be liable.

Disparate Treatment, Disparate Impact

The theory behind an employee’s discrimination claim is often called a disparate treatment theory. Disparate treatment occurs when an employer singles out a member of a protected group of employees and treats him unfairly.  Similarly when an employment practice has the adverse affect of mistreating a protected group of employees, even if the practice is not discriminatory on the surface, the employer may be held liable. This is called the disparate impact theory.

Both theories of discriminatory liability have the same requirements for establishing a primae facie case, but with disparate impact, it is not necessary for an employee to show discriminatory intent. In other words, disparate impact claims may be successful even if an employer did not intend to discriminate against a protected group by putting a particular employment practice in place. It is enough to show that the impact of the practice is discriminatory in its nature.

Class Action

Some employment discrimination cases become class action law suits. These cases involve multiple plaintiffs – each one a member of a group of employees protected by law and subjected to the same adverse employment decisions. Many of these cases are settled out of court early on in the proceedings. Some have even reached the Supreme Court, such as the recent Walmart case involving the failed class certification of over 1.5 million female workers claiming sex discrimination in 2001.

Establishing a class action employment discrimination case is in many ways the same as establishing a case involving just one plaintiff, except that there are a few procedural nuances. For instance, before proceeding, the group must be certified as a class by a court decision. Studies have shown recently that class action law suits are very rare and that, because most companies opt for settlement, they are much less likely to progress to trial proceedings than other types of employment discrimination cases.

Speak With a Competent Attorney

A competent attorney will able to advise the best course of action for establishing an employment discrimination case and may even be able to present alternatives to court time, such as requesting a severance package or opting for mediation proceedings. If your case heads to trial or is investigated by the EEOC, a lawyer can provide much-needed guidance at each step of the way. If you think you have a case for discrimination, contacting an experienced attorney is the best way to start the process of successfully resolving your issue.