You can prove discrimination in the workplace by providing evidence that it is taking place. This can include testimony from coworkers, discriminatory emails from supervisors, problematic employment practices, or almost anything else. As long as something shows, or even suggests, that your workplace is discriminatory, it can be used to prove a workplace discrimination claim.
Direct evidence of employment discrimination
Direct evidence of discrimination is anything that explicitly shows that your employer was discriminatory. Direct evidence is strong because no inferences need to be made to see that it is discrimination.
Examples of direct evidence in a workplace discrimination case include:
- an email telling a supervisor to demote you because of your religion,
- a written company policy to not hire anyone of a certain race, and
- a supervisor saying that you are not getting a promotion because of your gender.
Our employment lawyers have found that direct evidence is rare in workplace discrimination cases. Most employers know that explicitly discriminating against someone can lead to liability. If they want to discriminate against someone, they almost always hide their discriminatory intent.
For example: The company’s hiring manager tells Larry that he was not hired for the job because he is Black.
Circumstantial evidence of workplace discrimination
Circumstantial evidence of discrimination is anything that suggests that you are being discriminated against. Also known as “indirect evidence,” circumstantial evidence consists of facts that could mean the behavior is driven by discrimination, but might not. These facts require an inference to be made before they are discriminatory.
Examples of circumstantial evidence in a workplace discrimination case include:
- all of the employees under a particular supervisor are young, white people, suggesting either racial discrimination or age discrimination,
- after a supervisor change, only the performance evaluations of Black people got much worse, and
- an employee suffering an adverse employment action in the days after it became known that they are Muslim.
The discrimination attorneys at our law firm have found that circumstantial evidence is far more common in workplace discrimination cases.
Pattern and practice evidence
Both of these types of evidence of discrimination can also be evidence of an employment pattern or practice. These are facts that indicate, whether explicitly or through an inference, that an employer has a discriminatory policy in place and that it follows that policy regularly.
Examples of evidence that there is a discriminatory pattern or practice include:
- all women make 20 percent less than men do in the same position,
- in a large company of 100 employees, none of them are Hispanic, and
- the company has a written policy of only hiring people of a particular religion.
Evidence of a pattern or practice of employment discrimination often leads to a class action for the group of people who suffered from the discriminatory practice.
How to gather evidence
Gathering evidence of workplace discrimination can be difficult and sensitive. Our employment attorneys have found that how to go about gathering it can depend on your particular circumstances. Getting the legal representation of an experienced workplace discrimination lawyer is the best way to know how to proceed in your case.
However, some common evidence-gathering techniques are:
- asking coworkers to go on the record with their discriminatory experiences,
- asking witnesses of discrimination to come forward when asked about it,
- keeping emails that suggest that there is discrimination, or are explicit about it,
- talking to coworkers about their experience in the workplace,
- comparing workplace benefits and responsibilities with other members of a protected class,
- copying or keeping any documents that you receive that suggest discrimination, such as a poor performance review, and
- keeping a log book of potentially discriminatory statements that you hear in the workplace, including what was said, who said it, when, and where.
How workplace discrimination cases work
How a workplace discrimination case will proceed will depend on the anti-discrimination law that you are invoking. Our workplace discrimination attorneys frequently invoke Title VII of the Civil Rights Act of 1964, the leading federal law for anti-discrimination in the workplace. However, the people in some states, like California, benefit from state employment laws that protect them better than Americans in other states.
Title VII is one of the many anti-discrimination laws that require you to exhaust your administrative remedies, first. Only after doing this can you file your lawsuit in court.
Under Title VII, you have to file a workplace discrimination complaint with the Equal Employment Opportunity Commission (EEOC). This has to be done within 180 days of the allegedly discriminatory conduct. According to the EEOC:
“The EEOC is responsible for protecting you from one type of discrimination – employment discrimination because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. Other laws may protect you from other types of discrimination, such as discrimination at school.”[1]
Agents from the EEOC will investigate your claim. They often try to resolve the dispute with your employer through mediation or arbitration. If there is no resolution, the EEOC may give you a “right to sue” letter, which allows you to take your case to court.
Most jurisdictions use a “burden-shifting” approach to workplace discrimination lawsuits. Under this approach:
- you would have to make a prima facie case of discrimination, including that you have protected characteristics and suffered an adverse employment decision,
- your employer would then have to show that there is a non-discriminatory reason for its conduct, and then
- you would have to show that the purportedly legitimate reason was actually pretextual.[2]
If you are successful, you can win your employment discrimination case.
Legal Citations:
[1] EEOC, “What is Employment Discrimination?”
[2] See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
