I Was Discriminated Against. How Do I Prove It?

Use these links to jump to different sections:

• Proving Your Case: Evidence of Discrimination
• Court, Settlement, or Alternate Resolution?
• How Much Money Will I Get?

Don Gasiorek gets as many as 50 calls per week with potential cases of wrongful termination, including employment discrimination. The Farmington Hills attorney says most cases don’t move beyond that initial interview. But some do, and it never hurts to call; after all, initial consultations are typically free. “For anybody who has been terminated or subject to any kind of adverse employment action, it’s worth their while to call a firm that specializes in employment law—just to see if they have a claim. And do so right away, because there are varying statutes of limitations for these cases—and some can be short,” says Cary McGehee, who co-founded Pitt, McGehee, Palmer & Rivers in Royal Oak and has litigated hundreds of employment cases. “A good analogy is, when you don’t feel well, you go to a doctor to see what he or she says. Sometimes they say, ‘It’s not that big of a deal;’ sometimes they say, ‘It’s nothing, don’t worry about it;’ and sometimes it’s, ‘Wow, this really needs some aggressive treatment.’” If a lawyer takes your discrimination claim, here’s how it will likely proceed.

Proving Your Case: Evidence of Discrimination

One of the biggest misconceptions employees have about their rights is that there must be a legitimate reason for their termination. “But in Michigan, like most states, you’re presumed to be an at-will employee, meaning you can be terminated with or without cause,” McGehee notes. But discrimination is another matter, and covered under both state and federal laws. Often these cases operate on what’s known as the McDonnell Douglas framework. Named for the Supreme Court case McDonnell Douglas Corp. v. Green, the idea is as follows. The worker, or plaintiff, must prove:

1. they are among a protected group: age, race, gender, religion, weight, physical disability, etc.
2. they were doing the job reasonably well
3. they suffered an adverse employment decision, such as termination
4. they were replaced by someone outside of the protected group
5. they suffered damages

If these points are satisfied, “the burden to come forward with evidence shifts to the employer,” Gasiorek says. “The defendant must come forward with a legitimate, non-discriminatory reason for the termination. They have to say, ‘It wasn’t because of age; it was because of performance.’ Or, ‘It wasn’t because of gender; they were missing too much time from work.’” If the employer satisfies that point, the burden comes back to the employee to disprove the employer’s reason. “If they say it’s performance, for instance, we’d try to prove that it wasn’t—because other, comparable workers who do the same thing weren’t terminated and replaced by a younger person,” Gasiorek says. Proving that an employee was capable usually isn’t difficult, he adds, “because you can access the personnel file and performance evaluations under Michigan law.” And if you have testimony from other coworkers, emails or other evidence, it can certainly add to your claim. “Direct evidence can exist, like someone saying, ‘I’m terminating you because you’re a woman’ or ‘I’m not promoting you because a man would be better,’ but that’s seldom the case,” McGehee says. “But you can also prove your case with circumstantial evidence.” Examples include disparate treatment or animosity, whether due to personal bias or, say, a recent medical condition. If you seek emotional damages, a plaintiff doesn’t need a diagnoses condition or treatment by a medical health professional, McGehee adds. Sometimes testimony about how it affected you can be enough. Evidence of different treatment under similar circumstances can likewise help prove a case. “If you were terminated for tardiness, for example, it would be good to note how others were treated who are working under the same supervisor and have similar attendance,” she says. “Patterns can also be important, like if there’s a trend of older people being let go.”

Court, Settlement, or Alternate Resolution?

Michigan has court-ruled case evaluation, which mandates that disputes go before a three-person panel before any courtroom. “That panel then puts a number on the case,” Gasiorek says, “a number they believe would be a good settlement value, based on the strengths and weaknesses of both sides.” The parties then have 28 days to consider the amount. If the number is accepted, the case is settled. If it isn’t, it may be time for a trial. Less than 2 percent of cases go to trial, Gasiorek says, because the process can be slow and costly. “If an attorney goes from beginning to end on an employment case, the fees could be as high as $100,000,” he says. “So, instead, what you can do is sit down with a neutral third party to facilitate a settlement.” Alternative dispute resolution is common in employment law, he says, because it’s often faster and less costly. The neutral party works with both sides to come to a decision that all sides can agree with. Whenever he takes a discrimination case, Gasiorek writes a letter to the employer detailing what he believes to be the basis for the case. “I say, ‘If you want to talk about this, with a view towards an amicable resolution, contact me. If you don’t, and I don’t hear from you in 10 days, we’ll seek other means of legal redress.’ Nine times out of 10, I hear from somebody. And it doesn’t happen too often, but sometimes we settle right then. Oftentimes it leads to facilitation.”

How Much Money Will I Get?

Clients often have an exaggerated perception of what their case is worth, Gasiorek says. Plaintiffs have the potential to claim economic losses, emotional damages, punitive damages and/or attorney costs, but often the primary factor for determining damages is lost wages. “Let’s say there’s a 50-year-old woman and we think her gender was a factor in her termination,” he says. “She has a work life of 15 or 17 years, let’s say, and she was making $60,000. If you multiply that out, it’s a million dollars plus benefits.” Sounds good, right. Sadly, it’s not that simple: “The plaintiff has a duty to make a reasonable effort to secure comparable employment,” Gasiorek continues. “And, ultimately, he or she probably will—even if it takes a year or two. So a jury will look at that, agree with the argument that she is a good employee, and give her damages for, say, two to five years.” For more information about this area, see our employment law overview for employees, as well as information on wrongful termination, sexual harassment and employment litigation, or reach out to a law firm for legal advice.