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How to prove workplace discrimination (Part 1)

On Behalf of | Nov 15, 2022 | Firm News

If you’re like most people, you know that workplace discrimination is wrong. It’s illegal, and if you’ve experienced discrimination, you might want to take action. However, few people understand what they need to prove to win their cases.

The result is that too few people act. Studies claim that 90% of people who experience sexual harassment never file a claim. Part of their inaction might owe to a sense that nothing will come of their claims. So, what do people need to prove win a workplace discrimination case? It depends on the type of discrimination.

The rules are different for federal employees

The first thing to understand is that courts evaluate discrimination cases according to the different standards set by the laws. Here, the laws that protect federal employees sometimes differ from those that protect private sector workers. Thus, the standards are often different. Federal workers typically benefit from stronger laws.

The rules are different for different types of discrimination

Discrimination is any adverse action taken against a member of a protected class because of that person’s membership in that class. However, the standards change depending on the protected class because they gain their protection from different laws. These laws include:

  • Title VII of the Civil Rights Act of 1964
  • Age Discrimination in Employment Act (ADEA)
  • Rehabilitation Act
  • Genetic Information Nondiscrimination Act (GINA)
  • Uniformed Services Employment and Reemployment Rights Act (USERRA)

Even as these laws prohibit discriminatory actions in hiring, firing and discipline, they also protect employees from harassment and retaliation. Accordingly, they influence the different standards for harassment and retaliation claims, just as they shape the standards for discrimination cases.

The standards for Title VII discrimination

Title VII says that employers cannot make decisions based on an individual’s membership in any protected class established by five factors:

  • Race
  • Color
  • Religion
  • Sex
  • National origin

To prove discrimination under Title VII, you do not have to meet the stringent “but-for” legal standard. The but-for standard forces someone to draw a direct link between a cause and effect.

If it were the standard here, it would effectively force you to show that your membership in one of the protected classes outweighed every other consideration. If not for your membership in that class, you would have had a different outcome. You would have gotten the job. You would have received a better performance review. You would have earned the promotion. You would have kept your job.

However, the standard established by Title VII is more relaxed than that. You merely need to show that your membership in a protected class was a “motivating factor” in the decision.

In some rare cases, you might have direct proof. More often, you can build your case with a good amount of circumstantial evidence. In some cases, you might elect to shift the burden of proof back onto the employer. This option, known as McDonnell Douglas burden-shifting, requires you to prove:

  • You are a member of a protected class
  • You were qualified for the position or opportunity at hand
  • You were rejected even though you were qualified
  • The agency or employer kept looking elsewhere

After you establish these facts, you don’t have to prove the employer discriminated against you. Instead, it becomes the employer’s job to prove that it didn’t. This typically means the agency or employer offers a plausible excuse, and your case hinges on your ability to show that that excuse is fictional.

Discrimination under other laws

Since Title VII became law, other laws have named and protected other classes:

  • The ADEA sets different standards for age discrimination claims by private sector workers and federal employees. Private sector employees must meet the but-for standard, but federal employees only need to meet the but-for standard if they want back pay, reinstatement or compensation. They can seek forward-looking decisions by showing that age discrimination played any part in the decision.
  • Disability discrimination claims made under Section 501 of the Rehab Act must meet the but-for standard. Claims made under Section 504 must sometimes meet an even higher “sole cause” standard.
  • Military service discrimination cases made under USERRA must show the individual’s military service was a motivating factor.

You need to aim at the right standard

Obviously, you need to gather enough evidence to win your case, but it helps to know which standard you need to meet. Discrimination cases do not all function the same way. The rules are different for federal employees than they are in the private sector. Certain cases might influence which evidence you can provide and how much weight the courts might give it.

As a result, one of the best things you can do to strengthen your case is meet with an attorney who understands federal employment law. You want to make sure your attorney has a deep familiarity with the appropriate laws and precedents. In most cases, you can then turn your focus to proving that your membership in a protected class became a motivating factor in the decision against you.


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