How Can You Prove If There Was Employment Discrimination At Your Workplace?

What Does Employment Discrimination Encompass?

The California Fair Employment and Housing Act does not lay out an exhaustive list of acts and attitudes that violate the rights of job seekers and employees.  That is part of its strength.  It gives us the flexibility to decide whether an act or process is discriminatory based on the evidence in specific cases.

Instead of relying on a limited number of examples, the law sets out protected categories of people and conditions. One’s race falls into one of the protected categories.  Being disabled places a person into another. A person cannot be harassed or discriminated against based on their status as a member or one or more of these categories.California has some of the most broadly protective employment discrimination laws in the nation.  Our laws make it unlawful to discriminate against a job seeker or employee on the basis of race, color, ancestry, national origin, religion, sex (including pregnancy, childbirth, and related medical conditions), disability, age (40 and older), genetic information, marital status, sexual orientation, gender identity and gender expression, AIDS/HIV, medical condition, political activities or affiliations, military or veteran status, and status as a victim of domestic violence, assault, or stalking.

The Many Faces of Workplace Discrimination

Not only can employment discrimination take aim at many different targets, it can show itself in a variety of ways. Discrimination can be very direct or it can be extremely subtle, from enduring snide comments from your superiors to being denied a position based on your skin color. California’s Fair Employment and Housing Act provides examples of many different forms of discrimination.

Workplace discrimination cases have included denials of reasonable workplace accommodations for individuals with physical disabilities or being demoted for taking advantage of one’s maternity leave allotment. With these examples in mind, it seems inevitable that an employer may have a valid excuse up their sleeve to back their employment decisions. They either “hired someone with more desirable qualifications,” deem that “it would be costly and burdensome to accommodate a certain disability” or base a demotion on “job performance since being back to the office after leave.” So how can you prove that disfavor of a certain group of people was the reason for an employer’s unfavorable decision?

The Legal Standards

Where you have direct evidence of discrimination, your case is significantly easier to prove than if you have only indirect evidence. Direct evidence can include comments about skin tone, hair texture, and jokes about one’s culture or race-based stereotypes. Several years ago, Kitchin Legal represented an African American woman who worked in a clothing store where her managers and coworkers constantly made racist comments to her about her physical characteristics. We were able to prove her case with direct evidence – clear examples and instances of her workplace degrading her, mocking her while using an exaggerated southern accent, and treating black customers differently than others. The animus and motivation for their actions were clear. One can imagine how difficult it would be for an employer to defend this case and argue that there was no racism at play.

Indirect evidence is more difficult to show and makes a case much harder to prove. The employee who suffered discrimination knows what they experienced and has a strong basis to believe that it was the result of animus toward their protected class, but if you asked them to point directly to the discrimination itself, they can’t. Employers will rarely tell you that you are being fired because you became pregnant, or that you aren’t getting a raise due to animus towards the Latinx population. In a way, you have to show that animus towards your protected class is the only reasonable explanation for the unfavorable treatment that took place. Legally speaking, the party seeking to prove discrimination will have to set out a prima facie case of discrimination, or facts that show discrimination “upon a first impression.” The Supreme Court set out four factors in McDonnell Douglas v. Green which require a showing that: (1) plaintiff is a member of a protected class; (2) plaintiff met their employer’s legitimate job performance expectations; (3) plaintiff suffered an adverse employment action; and (4) other similarly situated employees outside of plaintiff’s protected class received better treatment from their employer. Once a Plaintiff successfully shows each of these factors, the employer has the opportunity to show that there was a valid, non-discriminatory reason for their action or decision with respect to the plaintiff. It becomes particularly difficult to prove your case under McDonell Douglas where the employer can point to a valid reason, or even just an alternate reason, as to their decision.

What Steps Can You Take to Help Prove Your Case?

Evidence is everything for your case and you can’t win without it. If you are experiencing direct discrimination, document it. Take screenshots of messages and emails, write out direct quotes, and keep a record of who says what and when it was said. If the offending employees are not your superiors, you may have to show that someone of authority at least knew of the comments being made. Bring it to their attention and give them an opportunity to do the right thing. If you are experiencing discrimination absent direct evidence, take note of the composition of your workplace.

• Are other women in your position and with your qualifications being denied a promotion?
• Did a less-qualified white individual get the raise that you had been working toward?
• Is your employer unwilling to let you take short breaks in order for you to pray as required by your religion?

All of these things could be evidence of unlawful discrimination.

And of course, if you are working in an environment where your coworkers or supervisors are making inappropriate comments about your race, pregnancy or religion, seek legal advice.

If you are an employer facing a lawsuit for discrimination in your workplace, look to our guide on What to Do If You Are Being Sued for Employment Discrimination

Please contact us with any questions you might have about discrimination in the workplace.