How to Prove Discrimination in the Workplace

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1Understanding Workplace Discrimination

2Gathering Evidence of Discrimination

3Reporting Discrimination to the EEOC

4Proving Workplace Discrimination in Court

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Article Summary

In the United States, it is illegal to discriminate in the workplace based upon someone’s age, race, gender, or other protected characteristic. However, proving workplace discrimination can be difficult because you will rarely find a “smoking gun” that proves an employer discriminated. Instead, you will need circumstantial evidence that your employer was motivated by discrimination when making an employment decision. Effectively proving workplace discrimination generally requires the assistance of a lawyer.

Steps

Part 1

Part 1 of 4:

Understanding Workplace Discrimination

1. 
   1
   Understand federal anti-discrimination law. Federal law protects you from discrimination in the workplace based on your race, color, sex (including pregnancy), national origin, religion, age (if 40 or older), disability, or genetic information. Discrimination is prohibited in all aspects of employment, including hiring, firing, layoffs, pay, promotions, job assignments, and fringe benefits.

   • It is also illegal to harass a person because of these characteristics. Harassment can take many forms. Sexual harassment includes unwelcome sexual advances (sexual harassment) and verbal or physical harassment that may not be sexual in nature but that is based on your gender.
   • Harassment can be directed at one person, or it may be so pervasive in the workplace that the environment becomes hostile and abusive.
   • The federal Equal Employment Opportunity Commission (EEOC) has been created to investigate charges of discrimination and harassment. It has 53 field offices around the country.
2. 
   2
   Check if your employer is covered. Federal law does not apply to all employers. Instead, the age discrimination provisions apply to employers that have 20 or more employees; all other provisions apply to employers with 15 or more employees.

   • If the employer is a public agency, the employer may be covered regardless of the number of employees.
   • If federal law does not cover your employer, then state or local anti-discrimination laws may apply.
   • Thus, you first have to figure out which laws apply in order to determine if your employer is covered. This is often a legal task; therefore, it's best to contact an attorney.
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3. 
   3
   Find your state or local anti-discrimination law. In addition to federal law, many states and municipalities have passed laws prohibiting discrimination. These laws may protect more people than the federal law. For example, many states have passed laws prohibiting discrimination on sexual orientation. Other states prohibit age discrimination against people under 40 or discrimination against people with children.

   • States have also created their own Fair Employment Practices Agencies (FEPAs), which are charged with investigating violations of state anti-discrimination laws. These agencies often afford a person greater rights or protections then the federal laws.
   • For example, in California you can file complaints with the state’s Department of Fair Employment and Housing (DFEH). California will also allow you to seek immediate relief in court, which federal law will not. Instead, under federal law, you must wait until the EEOC completes an investigation before you can sue in court.
   • If you report discrimination that is covered by both the federal and state laws, then you will have a choice as to which agency to report to. For example, race discrimination is covered by both the EEOC and your state’s FEPA. In this situation, the discrimination complaint (the “charge”) that you file with one agency will be automatically shared with the other.
4. 
   4
   Identify how an employer can discriminate. In employment law, an employer can discriminate in two ways. First, the employer can directly discriminate against a person based on their protected characteristic. This type of intentional discrimination is called “disparate treatment.”

   • It is also illegal for an employer to practice “disparate impact.” With disparate impact, a supposedly non-discriminatory rule or policy impacts groups of people in a disproportionate manner. For example, a strength test is not discriminatory on its face. However, in practice, it would exclude far more women than men. For this reason, the test may be discriminatory.
5. 
   5
   Hire an attorney. It is always a good idea to at least meet with an experienced attorney. Employment discrimination law is complicated, and only an experienced employment lawyer can provide tailored advice based on your unique circumstances. To find an experienced employment law attorney, you can visit your state’s bar association, which should run a referral service.

   • You might be worried about the costs of hiring an attorney. Typically, employment cases can cost between $8,000 and $30,000. However, most employment lawyers are open to alternate billing arrangements, such as contingency fee agreements.
   • Under a contingency fee agreement, the lawyer gets paid a percentage of your award amount. Accordingly, you won’t owe attorney’s fees unless you win. Nevertheless, you could still be responsible for paying litigation costs, such as filing fees and costs associated with court reporters.
   • For additional tips, see Find an Employment Lawyer.
   • Make sure that your attorney has experience in both federal and state court, and is familiar with both state and federal laws. It also helps to hire an attorney with trial experience—not only will this benefit you at trial, but it may make the employer more likely to settle the case beforehand.
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Part 2

Part 2 of 4:

Gathering Evidence of Discrimination

1. 
   1
   Keep relevant communications. It is difficult to prove that you were discriminated against because of your protected characteristic (such as race or age). Few employers will come right out and say that they are discriminating against you for an illegal reason. As a result, you will need circumstantial evidence of intent.

   • Comments your employer makes about you is an excellent place to look for bias. For example, your employer may use derogatory or insulting language. Sometimes, an employer might slip up and admit outright that he or she is biased against you. In this rare situation, you would then have a “smoking gun” that proves discriminatory intent.
   • You should save memos, letters, emails, and phone messages. Any of these communications could contain biased language.
   • The best way to document discrimination is to keep a journal of all the incidents. These incidents should be recorded shortly after they occur, and a date should be recorded for each entry. Each entry should be as detailed as possible, and should include what occurred and any persons present during the incident.
2. 
   2
   Ask for a copy of your employment contract. You should have been given a copy when you were hired. If you misplaced it, then call Human Resources and ask for a copy. Your employment contract is critical information to have. Specifically, if your employer does not follow your employment contract, then you have proof of discrimination.
3. 
   3
   Compare how you and co-workers were treated. To help you prove workplace discrimination, you should see if you were treated differently than other people. For example, if a mass layoff affected only women or people of a certain race, then you might have proof of discriminatory intent. Similarly, if employees of only one sex or one race are promoted, you also might have proof of discrimination.

   • For this reasons, statistics are usually helpful when you sue a large company.
4. 
   4
   Look to see if the employer has been sued before. A company that has been sued for discrimination before may have a culture of discrimination. Your attorney should be able to research whether the company has been sued. Also, once you file a lawsuit, you can request that the company disclose this information.

   • You might not be able to use this information to prove discrimination in court. However, a company sued before might be more willing to settle. For that reason, it is important information to know.
5. 
   5
   Use discovery to request documents. After a lawsuit is filed, the parties exchange documents and other information in a process called “discovery.” To help you prove discrimination, you should be sure to request the following:

   • A copy of your personnel file. The file should contain helpful information, including your application and resume, any notes or comments from the interviews, and correspondence related to the hiring process. Your employer may have scribbled comments in the margins of your resume, for example, which could illuminate what the employer was thinking.
   • Other documents related to the employment decision. You should request all company communications that relate to whatever act was discriminatory (e.g. your layoff, suspension, etc.)
   • If you were fired or laid off, also make sure you have a copy of your termination notice. Also get documents that reflect the criteria your employer used in determining whether to fire or lay someone off. If your employer departed from this criteria—or never used objective criteria—then you have some proof of discrimination.
   • You also need all rules, policies, handbooks, and manuals that relate to your job.
6. 
   6
   Get financial documents. To bring a successful discrimination suit, you need to prove that you suffered damages as a result of the discrimination. Your damages are what you were deprived of due to your employer’s illegal discrimination. Get all documents related to your salary and fringe benefits, e.g. W-2 and 1099 forms. You can recover for lost wages.

   • Also get documents describing your job benefits. You can recover for the loss of benefits as well. Relevant benefits include retirement or 401(k) plan contributions, profit sharing plans, insurance (life, health, and disability), and any other benefit.
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Part 3

Part 3 of 4:

Reporting Discrimination to the EEOC

1. 
   1
   File as soon as possible. If you are a federal employee, then you only have 45 days to contact an EEOC counselor. The clock begins running from the date of the discriminatory act. All other employees 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. In any event, don’t wait too long before filing your charge.
2. 
   2
   File a charge with the EEOC. You can file a charge either in person or through the mail. (You can also start a charge by calling, but you cannot file by phone). If it is more convenient for you to file in person, then you can visit any of the EEOC’s field offices. See the EEOC’s website for a map of the offices around the country. You can call ahead to see if you need to schedule an appointment.
3. 
   3
   Write a letter to file a charge. You can also write a letter to the EEOC to file a charge if you don’t live near a field office. Your letter should contain 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)
4. 
   4
   File a discrimination charge with your state’s FEPA. If there is a FEPA in your state, then you have the option of filing with it instead of with the EEOC. The complaint process varies by state. In Maryland, for example, the FEPA is the state’s Commission on Civil Rights. There are 3 ways you can file:

   • Visit the Commission’s office at the William Donald Schaefer Tower, 6 Saint Paul Street, Baltimore to file a complaint. Office hours for walk-ins are Mondays and Fridays 9:00 am to 3:00 pm. On other weekdays, you must schedule an appointment. You can call 1-800-637-6347 to start the complaint process.
   • You can 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].
   • If you do not want to stop in or a write a letter, then you can file a complaint by visiting http://mccr.maryland.gov/Pages/Inquiry-Start.aspx and filling out the form.
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Part 4

Part 4 of 4:

Proving Workplace Discrimination in Court

1. 
   1
   File a lawsuit. You start a lawsuit by filing a complaint. Your lawyer will draft it for you. If you are suing under state law, then you will probably file in state court. If you sue under federal law, then you will file the complaint in federal court. Your complaint will allege the facts surrounding the dispute (“who did what”) and will ask the court for relief (such as reinstatement in your job or lost wages).

   • To sue, you will first need a “Notice of Right-to-Sue” letter from the administrative agency you filed your discrimination charge with. The EEOC issues their “Right-to-Sue” letters after conducting its investigation. Once you receive your letter, you have 90 days to file your lawsuit.
   • If you want to sue before the EEOC investigation has finished, you will need to send a letter to the EEOC director of the office you filed your charge with. At least 180 days must have passed since you filed the charge with the EEOC. The agency will close its investigation once the agency issues the “Right-to-Sue” letter.
2. 
   2
   Make a “prima facie” case of discrimination. You must outline the different elements of a discrimination claim in your complaint. At trial, you will then need to prove those elements. The precise elements you must prove will depend on whether you are suing for discrimination under your state or federal law.

   • In an employment discrimination claim, a prima facie case of “disparate treatment” will generally require you to prove:
     • you are in a protected class (sex, race, national origin, etc.)
     • you suffered an adverse job action (e.g. demotion, loss of fringe benefits, layoff, etc.)
     • your employer treated more favorably similarly situated employees who do not share your protected characteristic
     • you were qualified for the job
   • To make out a prima facie case of “disparate impact,” you typically will need to prove:
     • the existence of a disparity between groups
     • the disparity was caused by a specific employment practice, policy, or device (such as a test)
     • the challenged employment practice is not justified by business necessity
     • other measures were available to the employer, which were less discriminatory but which would have satisfied its need as equally well
3. 
   3
   Show that the employer’s reasons are pre-textual. If you make out your prima facie case, then the employer can respond that it had a legitimate, non-discriminatory motive for the contested action. For example, an employer that used a strength test as part of the evaluation for a promotion could argue that the job required more strength than you possessed. Alternately, the employer could simply argue that the other candidate was more qualified.

   • Once the employer makes the showing that it acted with a non-discriminatory motive, you must prove that the reason is mere pretext. In other words, you have to show that the offered reason is false and that a discriminatory motive was the real reason.
4. 
   4
   Offer witness testimony. Witnesses can provide important evidence in a discrimination lawsuit. For example, a witness might have overheard a supervisor make a biased comment about you. At trial, the witness can testify as to what they saw or overheard.

   • Witnesses can also testify as to their credentials. For example, if you lost out on a job promotion to someone who was not disabled, then you could have that person testify as to their credentials. If they are weaker than yours, then this is some evidence that your employer discriminated against you.
5. 
   5
   Submit documents to the court. Documentary evidence can also be used to prove workplace discrimination. For example, emails between management and your supervisor could contain biased comments, which is strong evidence of a discriminatory intent.

   • Documents can also show the company’s normal procedures for hiring, firing, or promoting someone. Where a company departs from its normal written policies when firing you, for example, but follows the procedures for everyone else, then you have proof that the employer was motivated by a discriminatory intent when it treated you differently.
6. 
   6
   Use statistical evidence. Statistics are key pieces of evidence in “disparate impact” cases. Statistics can show how a policy that is neutral on its face actually impacts groups in a disproportionate manner. For example, a physical fitness test may appear neutral, but if it disqualifies four times as many women as men, then it can be used as proof of disparate impact.
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Expert Q&A

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• Question

  What qualifies as disability discrimination?

  

  James Fett
  Lawyer

  James Fett is a Lawyer based in Ann Arbor, Michigan. With over 35 years of experience, he specializes in alternative dispute resolution, civil litigation, civil rights, class actions, commercial litigation, employment litigation, and labor & employment. James earned a J.D. from The University of Michigan Law School as well as an MBA and BA from The University of Michigan. In 2001, he was awarded a Certificate of Special Congressional Recognition, and the Washtenaw Trial Lawyers Association named him Lawyer of the Year in 1996. He’s also been named a Michigan Super Lawyer by Law & Politics Magazine and one of the ten Most Outstanding Lawyers of the Year by Michigan Lawyers Weekly.

  

  James Fett

  Lawyer

  Expert Answer

  The most obvious type of disability discrimination involves negative comments related to a person's disability. Another big red flag is how the employee is treated compared to their able-bodied co-workers—they might be scrutinized more, paid less, given extra work, given fewer opportunities, and more. Refusing to accommodate for a person's disability also counts as disability discrimination.

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• Question

  Where do you report if you suspect workplace discrimination?

  

  James Fett
  Lawyer

  James Fett is a Lawyer based in Ann Arbor, Michigan. With over 35 years of experience, he specializes in alternative dispute resolution, civil litigation, civil rights, class actions, commercial litigation, employment litigation, and labor & employment. James earned a J.D. from The University of Michigan Law School as well as an MBA and BA from The University of Michigan. In 2001, he was awarded a Certificate of Special Congressional Recognition, and the Washtenaw Trial Lawyers Association named him Lawyer of the Year in 1996. He’s also been named a Michigan Super Lawyer by Law & Politics Magazine and one of the ten Most Outstanding Lawyers of the Year by Michigan Lawyers Weekly.

  

  James Fett

  Lawyer

  Expert Answer

  Many companies have policies and procedures detailing how to report discrimination. Employees should always check these before proceeding; however, often the best place to report discrimination is to Human Resources (HR). HR is often responsible for investigating complaints of discrimination and will be able to guide you through the process.

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  Thank you for your feedback.
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• Question

  How can you file an internal discrimination complaint in your company before taking legal action?

  

  James Fett
  Lawyer

  James Fett is a Lawyer based in Ann Arbor, Michigan. With over 35 years of experience, he specializes in alternative dispute resolution, civil litigation, civil rights, class actions, commercial litigation, employment litigation, and labor & employment. James earned a J.D. from The University of Michigan Law School as well as an MBA and BA from The University of Michigan. In 2001, he was awarded a Certificate of Special Congressional Recognition, and the Washtenaw Trial Lawyers Association named him Lawyer of the Year in 1996. He’s also been named a Michigan Super Lawyer by Law & Politics Magazine and one of the ten Most Outstanding Lawyers of the Year by Michigan Lawyers Weekly.

  

  James Fett

  Lawyer

  Expert Answer

  Many employers have policies and procedures detailing how to file an internal complaint of discrimination. This generally starts with contacting HR or the Diversity, Equality, and Inclusion (DEI) officer. HR or the DEI officer may have you file a formal written complaint; from there, there should be an investigation into the matter.

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Tips

• When looking for an attorney, you should give some thought to hiring a lawyer who is certified as a specialist in employment law. Not every state allows certification. However, some states will certify lawyers as specialists when they have dedicated a significant percentage of their practice to employment law. Candidates must then take advanced legal education classes and be evaluated by judges or other lawyers. Finally, states offering certification often require that the lawyer also pass a written exam.
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