How to Prove Discrimination

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1Understanding Employment Discrimination

2Understanding Housing Discrimination

3Collecting Proof of Discrimination

4Reporting Employment Discrimination

5Reporting Housing Discrimination

6Proving Discrimination in Court

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In the United States, it is illegal to discriminate in employment and in housing on the basis of race, sex, disability, and other characteristics. To prove discrimination, you will need evidence that the employer or landlord was motivated by bias. This can be difficult to prove. Accordingly, you should seek an attorney’s assistance as soon as you believe that you have been discriminated against. Only a qualified attorney can provide advice tailored to your unique circumstances.

Steps

Part 1

Part 1 of 6:

Understanding Employment Discrimination

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   Read federal anti-discrimination law. Federal law prohibits discrimination in the workplace based on race, color, sex (which also includes pregnancy), national origin, religion, age (if 40 or older), disability, or genetic information. ] The prohibition covers all aspects of employment, including hiring, firing, layoffs, promotions, job assignments, pay, and fringe benefits.

   • The federal government’s Equal Employment Opportunity Commission (EEOC) is charged with investigating complaints of employment discrimination.
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   Find your state and municipal law. Most states and municipalities also have laws that prohibit discrimination. In large part, these laws track the federal law. However, they may also protect more people. For example, many states prohibit employment discrimination based on sexual orientation. Other states prohibit age discrimination against people under 40.

   • States also have their own Fair Employment Practices Agencies (FEPA's). These agencies investigate violations of state anti-discrimination laws. Often, a state’s FEPA provides greater rights or protections than the federal laws.
   • For example, California’s Department of Fair Employment and Housing (DFEH) allows people to get permission to immediately sue in federal court, which the EEOC does not allow. Instead, the EEOC must finish its investigation before you can sue in court.
   • If the discrimination you report is covered by both state and federal laws, then you can report discrimination to either agency. For example, sex discrimination is covered by both state and federal law. In this situation, the discrimination complaint (the “charge”) that you file with one agency is automatically shared with the other.
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   Confirm that you are covered. Federal law does not cover every employer. For example, the age discrimination provisions apply only to employers that have at least 20 employees. All other discrimination provisions apply only to employers with at least 15 employees.

   • If federal law does not cover your employer, then your state or local anti-discrimination laws can fill in the gap.
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Part 2

Part 2 of 6:

Understanding Housing Discrimination

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   Understand federal fair housing law. The federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status.

   • The federal Office of Fair Housing and Equal Opportunity has been tasked with investigating allegations of discrimination.
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   Find state or local law. As with employment law, most states and municipalities have also passed housing discrimination laws. They may protect more people than the federal law; for example, they can protect against discrimination based on sexual orientation.

   • To find local discrimination laws, you can search the Internet under “fair housing” or “housing discrimination” and then your state. If you can’t find anything, then you might want to visit your local law library, which should be in your courthouse.
   • States and municipalities have also created Fair Housing Enforcement Agencies. These agencies will investigate violations of state and local housing discrimination law.
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   Identify housing discrimination. It is illegal for anyone to discriminate against you for a prohibited reason in all activities related to housing. For example, it is discriminatory for someone to:

   • refuse to rent or sell housing
   • refuse to negotiate
   • make housing unavailable or lie and say that housing is unavailable
   • set different terms or conditions for you than for other people
   • refuse to make reasonable accommodations for a disabled person
   • refuse to provide municipal services
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Part 3

Part 3 of 6:

Collecting Proof of Discrimination

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   Preserve communications. You should hold onto all communications with the person you believe has discriminated against you. Preserve emails, letters, voice mail messages, and memos. Your lawyer will want to see this information.

   • Also write down your memories of any face-to-face conversations. Your memories will often be the only evidence of what was said to you. As soon as possible after the incident, sit down and write out what was said.
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   Get witness names. You will need witnesses in a discrimination case. If someone observed discriminatory conduct, then you should take down that person’s name and personal contact information. Be sure to get their personal (and not business) contact information, since people leave jobs all the time and could be hard to reach when you need them to testify on your behalf.
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   Check how other people were treated. To prove discrimination, you would ideally have a “smoking gun” where someone (your boss, a real estate agent) admits outright that they discriminated against you because of your protected characteristic. However, that is unlikely. Instead, you need circumstantial evidence that cumulatively shows the person’s motivation.

   • Strong evidence of discrimination exists where people who are similar to you are treated differently. For example, if a realtor refuses to show you a house in a nice neighborhood but shows several different white couples the house, then you have good circumstantial evidence that you were not shown the house because of your race.
   • Similarly, your boss might have only laid off the disabled employees, although you have similar education and experience as the non-disabled employees who were not let go.
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   Hire a lawyer. Only a qualified lawyer can tell you whether or not you have a strong discrimination case. Furthermore, a skilled attorney will know what evidence you need to convince a government agency or a court that you have suffered discrimination. To find a qualified attorney, you should visit your state’s bar association, where you can find referral programs.

   • Costs may be a concern. For example, bringing a discrimination suit can cost up to $30,000. However, you should realize that many lawyers will represent you under a contingency fee arrangement. In this situation, they will take a portion of the jury amount (usually 33-40%) instead of a fee. Although you will still be responsible for court costs, a contingency fee arrangement can make getting a lawyer reasonable.
   • Many public interest organizations exist to help people access fair housing. To find a list, you can visit the Legal Services Corporation’s website at www.lsc.gov and search for legal aid organizations near you.
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Part 4

Part 4 of 6:

Reporting Employment Discrimination

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   Understand why you must report. Before you can file a lawsuit in court to prove the discrimination, you must first report employment discrimination to either the EEOC or a state agency. Consequently, you cannot skip this step.
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   File before the deadline. Federal employees have only 45 days to contact an EEOC counselor, and the clock starts running on the date of the discriminatory act. All other people have at least 180 days to file a charge with the EEOC.

   • If your state also prohibits the same discriminatory conduct, then you might have up to 300 days to file a charge. Regardless of your situation, you should file as soon as possible.
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   File your discrimination charge with the EEOC. You can file a charge either in person or through the mail. (You can also start a charge with a phone call, but you cannot file by phone). To file in person, stop in at any of the EEOC’s 53 field offices. The EEOC’s website has a map showing the location of field offices around the country. You should call and ask if you need to schedule an appointment.
4. 
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   Submit a letter. If filing a charge in person does not work for you, then you can also write a letter to the EEOC. Make sure that your letter contains the following required information:

   • your name, address, and telephone number
   • the name, address, and telephone number for your employer
   • how many employees are employed at your workplace
   • a short description of the events or acts that you believe were discriminatory
   • when the events took place
   • a statement that you believe illegal discrimination was the motivation for the events or acts
   • your signature (required)
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   File a discrimination charge with your state’s FEPA. If you have a FEPA in your state, then you can file a charge with that office instead of with the EEOC. The complaint process will vary depending on the state. In Maryland, for example, the FEPA is the state’s Commission on Civil Rights. There are 3 ways you can file a charge with this office:

   • Stop by the Commission’s Baltimore office at the William Donald Schaefer Tower, 6 Saint Paul Street. Walk-in office hours are Mondays and Fridays, 9:00 am to 3:00 pm. On other weekdays, you must schedule an appointment. Call 1-800-637-6347 in order to start the process.
   • You may also write a letter containing all of the information that a letter to the EEOC would contain. You can then mail the letter or email it to the appropriate address.
     • Mail the letter to Maryland Commission on Civil Rights, ATTN: Intake, William Donald Schaefer Tower, 6 Saint Paul Street, 9th Floor, Baltimore, MD 21202-1631.
     • Email the letter to [email protected].
   • You also have the option of filing a complaint online. Visit https://mccr.maryland.gov/Pages/Inquiry-Start.aspx and provide the requested information.
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Part 5

Part 5 of 6:

Reporting Housing Discrimination

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   Understand why you might want to report. You are not required to report discrimination in housing to a government agency. Instead, you can immediately go to court and sue. Nevertheless, you should consider reporting the discrimination to the government in any event. Each year, there are about two million incidents of illegal housing discrimination, but only one percent is ever reported. By reporting the discrimination, you can help other people who also face discrimination.

   • Also, if the government agrees that discrimination has occurred, then it will facilitate mediation between you and the landlord. As a result of the mediation, you could reach an amicable solution.
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   File a federal complaint online. You can visit the website at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint to start a discrimination complaint. Click on the “Housing Discrimination Complaint” button to get started.

   • The online complaint form should take about 45 minutes to complete.
   • You only need to enter minimal information. A housing investigator will follow up by phone to get additional details.
   • You will be asked for your personal contact information (name, address, phone number, and email), the name and number of an alternate contact, the name of the person who discriminated against you, as well as a short description of what happened to you and why.
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   Call to file a complaint. You can also call your regional Housing and Urban Development office. The number you call will depend on which state you live in. You can find a list of regional offices and their phone numbers at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/online-complaint. Click on the “Contact Your Local Office” tab.
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   File a complaint with your state agency. You also have the option of filing a complaint with your state’s Fair Housing agency. In Florida, for example, you can report discrimination to the state’s Commission on Human Relations. You can report in the following ways:

   • You can call 1-800-342-8170 and speak to a staff member.
   • You can also mail a complaint. Fill out the Questionnaire. Return it to the address provided. A staff member will complete the charge and send it to you for your signature.
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Part 6

Part 6 of 6:

Proving Discrimination in Court

1. 
   1
   Understand what you must prove in an employment case. You can win an employment discrimination case by showing either "disparate treatment" or "disparate impact." They have different elements that you must prove.

   • In a “disparate treatment” employment discrimination case, you typically need to prove the following:
     • you are in a protected class (sex, race, national origin, etc.)
     • you have suffered an adverse job action (e.g., demotion, firing, reduction in pay, etc.)
     • your employer treated similarly situated employees who do not share your protected characteristic more favorably
     • you were qualified for the job
   • In a “disparate impact” employment discrimination case, you will need to prove:
     • that a disparity exists between groups (such as between the disabled and non-disabled, men and women, people of different races, etc.)
     • that a specific employment practice, policy, or device (such as a test) caused the disparity
     • the challenged employment practice/policy is not justified by business necessity
     • other measures were available to the employer that were less discriminatory but which could have satisfied its need as equally well
2. 
   2
   Identify what you must prove in a fair housing case. What you need to prove will depend on what kind of case you are bringing. There are generally three kinds of housing discrimination cases: disparate treatment, disparate impact, and reasonable accommodations.

   • To prove “disparate treatment,” you need to prove that you were treated differently because of your protected characteristic. The elements are:
     • you are the member of a protected class
     • you qualified for the housing in question
     • you were rejected from this housing
     • the housing was either given to someone who was not a member of the protected class, or the housing otherwise remained available
   • In a “disparate impact” case, the court will look at several factors and balance them:
     • the strength of the showing of a disproportionate effect
     • whether there is also some evidence of a discriminatory intent
     • the defendant’s interest in acting as it did
     • the nature of the requested relief
   • To prevail on a reasonable accommodations case, you will need to prove that you were denied the equal opportunity to use or enjoy a dwelling. This analysis is highly fact-specific. For example, if the accommodation would impose too much of an economic burden on the landlord, then you might lose.
     • Your lawyer, who is familiar with the case law, will have to analyze what evidence you need to prove that an accommodation would be reasonable.
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   Prove that the employer/landlord’s excuses are pre-textual. In both employment and housing discrimination cases, an employer or landlord can claim that they were motivated by a legitimate, non-discriminatory reason. For example, they could claim that someone else was more qualified for the job or for the apartment.

   • If they can make out that showing, then you must come forward with evidence that the stated non-discriminatory reason is actually false and that illegal discrimination was the real motivation.
4. 
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   File a complaint. You initiate a lawsuit by filing a complaint in court. Your attorney should draft it and take care of serving a copy on the defendant. The complaint will describe the factual allegations surrounding the dispute and ask for relief.

   • You should talk with your attorney about what relief you are seeking. In both employment and housing cases, you can seek money damages. You might also seek reinstatement in a job or in an apartment.
5. 
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   Present witnesses. Witnesses often provide critical evidence in discrimination lawsuits. For example, a witness might have overheard a supervisor or a landlord make biased comments. At trial, the witness can testify as to what they saw or heard.

   • Witnesses can also testify as to how they were treated. For example, if a landlord would not show you an apartment, then witnesses could testify that the landlord was happy to show them an apartment during the same time period. If you are Jewish but all of the witnesses are Christian, then this evidence helps show a discriminatory bias against you.
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   Offer documentary evidence. You can also present evidence in the form of documents. For example, emails or letters may help illustrate the defendant’s state of mind, which could help prove a discriminatory intent.
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   Use statistics to your benefit. Statistics are usually central to “disparate impact” cases. Statistics can show that a policy that looks non-discriminatory actually impacts groups in a lopsided manner. For example, a physical fitness test may appear neutral, but if it disqualifies three times as many women as men, then it can be used as proof of disparate impact.

   • Your attorney will help you compile relevant statistics to use at trial.
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