How do you prove discrimination in the workplace?

Discrimination in the workplace is a reprehensible, yet common practice. All employees have the right to feel safe and secure in their place of business, and to do their jobs without fear of unjustified adverse actions. Federal and state laws protect workers from discriminatory actions, but proving discrimination can sometimes be challenging. The most effective course of action is to consult an employment law attorney for legal guidance.

Why should you try to prove discriminatory practices?

Many workers decide to file a legal claim against an employer who has engaged in discriminatory actions. In some cases, filing a legal claim may enable the worker to continue to work in the same place, but to enjoy a fairer and less stressful environment.

Workplace discrimination may take the form of wrongful termination. If a worker has been wrongfully terminated, it can be difficult to secure employment elsewhere, given that the termination will be on the worker’s record and that it’s unlikely the worker can secure a positive reference from the previous employer. There may also be issues with the worker’s severance package, if applicable. In this situation, proving that the worker was the victim of wrongful termination can enable him or her to move forward.

Using direct evidence to prove discrimination in the workplace

Direct and circumstantial evidence are the two main types of proof that an employment lawyer might use to support allegations of discrimination in the workplace. Direct evidence isn’t often used, as it’s difficult to obtain. Direct evidence may take the form of verbal or written statements that a supervisor or manager took an adverse action against you based on your protected class. This begs the question: What is a protected class?

Under federal law, the legal definition of discrimination is an adverse action that was executed on the basis of a protected class. For example, a supervisor informs an employee that he is being let go because he’s getting too old and the company wants to promote a more energetic, youthful image. Age is a protected class, and so the supervisor has engaged in unlawful discrimination. Other protected classes are:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy, gender identity, and sexual orientation)
  • National origin
  • Age (40 and older)
  • Disability
  • Genetic information

Any written or verbal statements that prove discrimination on the basis of any of those protected classes can be used as evidence in an employment discrimination claim. These may take the form of memos, human resources records, or phone messages.

Understanding the use of circumstantial evidence

In most cases, workers who have suffered discriminatory actions must use circumstantial evidence as proof. When determining whether the circumstantial evidence is sufficient to prove a claim, attorneys will often refer to the McDonnell-Douglas test. This test, which stemmed from a Supreme Court decision, requires workers to answer “Yes” to the following four questions:

  • Are you a member of a protected class?
  • Were you qualified for your position? (Or the position you were applying for)
  • Were you the victim of adverse action? (Including firing, demoting, etc.)
  • Were you replaced by someone not in your protected class?

These questions are helpful for proving circumstantial evidence, but they aren’t the only factors an employment law attorney will consider. It’s also useful to consider patterns of behavior in a workplace. For example, you might have noticed that there are very few employees of protected classes at the worksite. If there are other employees of protected classes, you might have noticed that these workers tend to be given the less favorable assignments or positions. Any evidence you can give your attorney will be helpful for your case.

Have you been the victim of workplace discrimination?

Even if you aren’t sure whether you can prove discrimination in the workplace, you owe it to yourself to take action. No one should be subjected to discriminatory practices in the workplace. Get the legal help you need right now by contacting the law firm of Kantrowitz, Goldhamer & Graifman, P.C. Since 1975, our employment law attorneys have been providing exemplary legal representation to individuals in Bergen County, NJ and Rockland County, NY. It’s our mission to help you achieve a brighter future. Call us toll-free at (800) 711-5258 to request a consultation.

Additional resources on workplace discrimination

  1. U.S. Equal Employment Opportunity Commission, Overview.
  2. U.S. Equal Employment Opportunity Commission, Discrimination by Type,

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