Proving Discrimination in the Workplace: A Step-by-Step Guide

Federal and state laws protect you from discriminatory practices and unfair treatment at work. Federal laws are enforced by the U.S. Equal Employment Opportunity Commission, while state agencies enforce state anti-discrimination laws. Understanding your rights is the first step toward addressing and preventing workplace discrimination.

Below is a guide for proving discriminatory practices in the workplace. Speaking with an experienced discrimination attorney in your area can clarify the situation and empower you to move forward.

Identifying Workplace Discrimination

Building a case for workplace discrimination begins with recognizing that it is occurring. Discrimination can take many forms. It incudes the following:

• Employment practices that result in unfair treatment of a protected class
• Disparate impact on employees or applicants with protected characteristics
• Retaliation for reporting discrimination to human resources or a supervisor
• Workplace sexual harassment, including quid pro quo or a hostile work environment
• Demotion or poor performance reviews based on a protected characteristic

Once you suspect workplace discrimination, you must take steps to prove it, whether based on direct or circumstantial evidence.

Documenting Incidents

Documenting incidents of workplace discrimination is an important step in the evidence-gathering process.

Keep a personal record of all occurrences of discriminatory incidents or adverse actions. In your records, be sure to note the following:

• A description of the event
• The date and time of each occurrence or incident
• The location of each occurrence or incident
• The people who were involved
• Any people who may have witnessed the event
• Steps you took in response to the incident or occurrence

Taking the time to document the situation carefully could prove to be critical direct evidence of discrimination. Keep the written log in safe location, whether in a notebook or in a secure online document.

Collecting Witness Statements

Save any messages or emails containing discriminatory information along with the written log of occurrences. These may prove helpful as you or your lawyer determine what witness statements will most benefit your case.

Take screenshots and keep copies of your official complaints or responses from your human resources department. Other documents that could help prove your case may be:

• Copies of company policies regarding protections for discrimination in the workplace
• Copies of performance evaluations that do not support the adverse employment action
• Pay stubs or documents showing wrongful termination

In the digital age, it’s critical to ensure your key documentation is accessible if you lose access to your workplace systems where you may have access to evidence.

What Is the Burden of Proof in a Workplace Discrimination Claim?

In employment law, the burden of proof typically rests with the party making the claim, known as the plaintiff. Discrimination cases in employment law have slightly different legal standards and burden of proof depending on the particular type of case.

Generally speaking, the burden of proof in workplace discrimination cases typically involves the following:

1. Employee Makes Prima Facie Case of Discrimination

The employee must first establish a prima facie case of discrimination. Prima facie means “on the face of it.” In other words, the plaintiff presents sufficient evidence to show they have a claim. This typically involves showing:

• The employee belongs to a protected class (race, age, national origin, genetic information, disability, etc.)
• The person was qualified for the position or met performance expectations
• The person suffered an adverse employment such as termination or demotion
• Evidence suggesting unlawful treatment

If the plaintiff is successful, the burden shifts to the employer.

2. Employer Must Provide a Legitimate Reason for the Action

To meet its burden of proof, the employer must provide a legitimate, non-discriminatory reason for the adverse action. If the employer meets its burden of proof, it shifts back to the employee.

3. Employee’s Rebuttal

The employee then has the opportunity to prove that the employer’s stated reason is a pretext for discrimination. An employee can do this by showing inconsistencies in treatment between protected groups and others, bias, or evidence of discriminatory intent.

In general, the burden of proof shifts between the employee and employer as the case progresses, depending on the evidence presented. This legal framework is designed to ensure a fair process for evaluating discrimination claims.

Filing a Discrimination Complaint

Before pursuing legal action, follow any workplace policies and procedures to report discrimination internally. This could resolve the issue or provide additional evidence should you need to move forward. In some cases, you may be required to report the discrimination internally.

After moving through internal channels, you may need to escalate the matter. You may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) or your state’s fair employment agency. Be mindful of time limits for filing a charge of discrimination — generally 180 or 300 days, depending on where you work.

Generally, you must file a discrimination charge with the EEOC or your state agency before you can file a lawsuit for unlawful discrimination. You may hear this requirement referred to as “exhausting your administrative remedies.” It means you’ve pursued all your administrative options and the agency has given your clearance to sue. Note that federal employees have different procedures for filing a complaint of discrimination against a private or public employer.

Many states, counties, cities, and towns have laws prohibiting discrimination and agencies enforcing these local and state laws. There may be different deadlines for filing a charge with these agencies or different standards to determine whether you are protected.

Seeking Legal Advice and Representation

If you experienced discrimination or need help determining whether your workplace situation involves illegal discrimination under anti-discrimination laws, consider speaking with an attorney for clarification and legal advice. An employment attorney can explain whether the unfair treatment could result in a successful discrimination lawsuit and any other legal action.

Visit the Super Lawyers’ directory to find a local employment lawyer with experience litigating discrimination claims.