Topic of the Week Proving Discrimination in the Workplace
Discrimination may occur in many different forms and in various ways. You might have a "gut feeling" that you were discriminated against. But how can you tell if you have a valid case?
Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. While federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred. Here's what you need to know to help you prove discrimination:
1. What is discrimination?
Discrimination can be found when you are treated differently, or less favorably, than other employees. The Equal Employment Opportunity Commission (EEOC) protects specific classes of people, known as protected classes, from employment discrimination when it involves unfair treatment, harassment, denial of a reasonable workplace change needed because of belief or disability, improper questions or disclosure of genetic or medical information, and retaliation for filing a complaint.
2. What are the different types of discrimination claims that I could bring?
If you believe you have been discriminated against, you may bring a claim for:
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice is discriminatory —even if it was not intended to be discriminatory. The anti-discrimination laws make it illegal for a rule or practice to be more harmful to members of a protected class. For example, a strength requirement might screen out a greater number of female applicants for a job while requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect minority candidates.
Retaliation happens when, as a result for filing a discrimination complaint, an employer treats the employee poorly or adversely as punishment for filing the original complaint.
3. What evidence is needed to prove my employer intentionally discriminated against me?
There are two types of evidence that can be used to prove discrimination: direct and circumstantial.
Direct evidence is the best way to show that you experienced discrimination. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.
For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.
Circumstantial Evidence (Indirect Evidence)
Circumstantial evidence can include anything other than direct statements from your employer that allow for the assumption of discrimination. The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.
Thought of the Week
"No group of workers alleging discrimination — age, gender, disability, or otherwise — fares well. Race claims, however, are among the most commonly filed and have the lowest rate of success, with just 15 percent receiving some form of relief, often compensation."
–Maryam Jameel and Joe Yerardi, Vox
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Facts on discrimination in the workplace by the EEOC:
- 61% of employees aged 45+ have experienced or witnessed discrimination at work
- Less than 22% cases on equal pay discrimination led to a resolution
- Less than 16% of race-base discrimination cases led to a resolution