Proving employment discrimination involves key knowledge of top employment discrimination law and policy. It begins with a claim that discrimination has occurred on the basis of one or more protected categories. These categories have been established to protect historically discriminated groups and to ensure that artificial barriers to employment for these groups are removed.

While employment discrimination policy may be generally known among workers, the specific application of the law may not be. This is sometimes because employers underestimate the importance of knowing employee rights represented in the law. The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces employment discrimination law, urges companies to notify workers of anti-discrimination policy and provide training for both management and employees.

Working with the EEOC and State Fair Employment Practice Agencies (FEPAs)

Federal law requires that employment discrimination cases first be filed with the EEOC or a state FEPA. These agencies are designed to handle discrimination cases using thorough investigations into employee claims. While not all states have FEPAs, the EEOC has branch offices in every state and must be notified of any employment discrimination claim before the case can be filed in a court of law.

Establishing a Primae Facie Case for Employment Discrimination

Employment discrimination cases are established by proving a set of legal elements. Once these elements are proven, a primae facie case for employment discrimination is established. This means that the plaintiff has satisfied all the legal requirements for showing discrimination occurred. The elements for establishing a primae facie case for discrimination are:

1. The employee was qualified for the position.

2.  The employee is a member of 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 position, or the position remained open and the employer kept searching for other qualified employees after the decision was made.

Once these four elements are established, the burden of proving the absence of discrimination shifts to the defendant. It’s up to the defendant to show a legitimate reason other than discrimination for the adverse decision.

Employers often cite poor work performance or a history of poor evaluations as legitimate reasons for adverse employment reactions. If successful, the defendant shifts the burden of proof back to the plaintiff to show that the reasons offered were a mere pretext for discrimination. If the plaintiff is able to show that the reasons offered are pretext, his or her case for discrimination stands. It will then be up to the defendant to offer affirmative defenses to the claim of discrimination.

Class Action Employment Discrimination

Proving a class action employment discrimination case is similar in terms of the elementary basis and burden shifting for a single plaintiff case. The class action differs in that, rather than one plaintiff asserting claims of discrimination, there are multiple plaintiffs, each with similar complaints about discrimination, represented by a lead plaintiff. This allows the claims of many affected employees to be decided in one case.

Class action suits must first be recognized by the courts. In order to do so, the lawyer representing the plaintiffs will file a motion with the appropriate court for certification of the class. Some class action suits fail to make it past this stage, as was the case with the notable Wal-Mart v. Dukes, 564 U.S. — (2011), in which the certification of over 1.5 million plaintiffs for a sex discrimination case failed due, in part, to the large size of the class.

Establishing Disparate Impact Cases

When an employment practice is neutral on its face, but has an underlying discriminatory impact, it is called disparate impact discrimination. For example, in Griggs v. Duke Power Co., 401 U.S. 424 (1971), the defendant implemented a hiring and transfer policy for their labor department which required applicants to take an IQ test or possess a high school diploma.

The requirement was an underlying move to discriminate against African-American applicants, a group the company had previously relegated to the labor department where salaries were the lowest in the company. The Supreme Court held that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.”

Establishing a Case for Retaliation

As with establishing a case for employment discrimination, establishing retaliation also has a number of elements that must be proven by the plaintiff:

  1. Adverse action against an employee
  2. Taken against covered individuals,
  3. Due to a protected activity.

When an employer makes a decision or takes adverse action against an employee who has complained about discrimination, is participating in discrimination proceedings or has filed a discrimination charge, the employer may be liable for retaliation. Adverse action includes refusal to hire, termination, increased surveillance and even assault.

Lawyers Know Best How to Prove Employment Discrimination

A qualified attorney is essential for filing an employment discrimination complaint. The professional expertise of an attorney in discrimination cases increases the likelihood that no detail or fact will be left unexplored and that all options for reprisal are thoroughly examined. This means a better experience for the employee and often ends with a favorable scenario that cannot be duplicated by pro se plaintiffs.

In disparate treatment cases, an attorney is even more essential to the process. These cases often require statistics and facts that can only be uncovered through a complete and thorough discovery process. The same is true for class action law suits. The inclusion of 30 to 40 plaintiffs means that an experienced attorney can handle the administrative and organizational matters of such large cases in the best way possible.

Know Your Employment Discrimination Rights

To prove employment discrimination, an employee must be knowledgeable of his or her rights and must have a competent attorney to argue in favor of those rights. Four elements establish a primae facie case which shifts the burden to the defendant to prove a legitimate business reason or necessity for the decision that has been made. Even then, the employee still may show that any reason offered as legitimate for an adverse decision is a mere pretext in the plaintiff’s favor. These key items shape the basics for proving employment discrimination.