Employment Discrimination Claims - What the Employee Must Prove to Win

When employees are treated badly and suspect it is due to discrimination they may wish to sue. To win the plaintiff has the burden of showing that he or she was member of a protected class, the employer's action was serious and discriminatory, and there was no legitimate, non-discriminatory explanation for the employer's behavior. Here are the four guidelines to help you determine if you have a viable claim.

1. Have You Suffered From A Serious Adverse Employment Action?

Getting fired, not hired, demoted, passed over, given poor assignments, not given good assignments, paid less for the same work all these things happen in the workplace. To be the basis for a discrimination suit the employer's actions must be related to the employee's status in a protected class (race or gender for example), the adverse treatment must be substantial and detrimental and "reasonably likely to impair an employee's job performance or prospects for advancement." This means that minor things, while unfair, are generally not enough for suit. If your boss criticizes your work, plays favorites, or has unreasonable demands these factors will not usually support a discrimination lawsuit.

2. Are You A Member of A Protected Class?

Both federal and state laws prohibit an employer from discriminating against individuals based on: Race, Religion, Color, National Origin, Disability, Marital Status, Gender, Sexual Orientation, Age, and Pregnancy. Title VII of the Civil Rights Act of 1964 is the principal anti-discrimination federal law and it is administered by the Equal Employment Opportunity Commission. The California Fair Employment and Housing Act prohibits discrimination in all aspects of employment including hiring, termination and terms and conditions and many other states have similar laws.

3. Can You Prove The Discrimination?

Direct evidence is the easiest way to show that discrimination occurred. Direct evidence of discrimination includes statements by supervisors, managers or other witnesses that directly go to the heart of the issue. For example, if the boss tells a co-worker that Employee Smith won't be getting the promotion because she is a woman, or Employee Green is being fired because he is gay, then plaintiff has a straight forward case.

Most discrimination cases are circumstantial. The likelihood of success can only be determined on a case by case basis after consultation with an attorney. Here is a hypothetical case in which the claimant may be able to to state a claim for discrimination--A terminated employee alleges he or she was 1) a member of a protected class 2) that the employee was qualified for the position 3) the employer took an adverse action against the employee by firing him or her, and 4) the employee was replaced by a person who was not in the protected class. Showing those facts states a claim. However, the case is not over.

4. In A Circumstantial Case Your Employer May Try To Show That Its Actions Were Not Discriminatory

An employer always has the opportunity to offer a legitimate, non-discriminatory reason for its actions. The employee must then show the proffered reasons are a pretext; just a cover for unlawful discrimination. This is difficult. Sometimes the plaintiff can show that the legitimate reasons offered by the employer are factually defective. Continuing our example from above assume the employer states that the employee was constantly late. During the case the employee's time sheets are produced and they show that the employee was punctual. The law requires plaintiff to show not only that the employer's stated reason is false but also that adverse action was due at least in part to discrimination.

The burden of proof in discrimination cases is high. The steps above are meant as guidelines for employees who feel that they suffered discrimination on the job. The guidelines are not a replacement for discussing individual facts with a qualified attorney.

Galen Gentry has 19 years of jury trial experience in the state and federal courts. Galen has received the highest ratings for legal skills and ethics from Avvo and Martindale Hubbell, the two most popular lawyer rating sites. He represents employees in employment disputes and is the lead attorney in several employment class action cases. For more information on the procedural steps for filing a discrimination claim go to http://galengentry.com/?page_id=124 or the EEOC or DFEH websites.

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