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Discrimination in the workplace and in our communities still exists. The death of George Floyd defies all human decency and violates constitutional law. It spotlights the systemic racial discrimination in our police departments. Driven by the Black Lives Matter movement, 76% of Americans believe that racial discrimination is a “big problem” in this country, according to a recent poll.
Workplace discrimination is more subtle. In my 30+ years, I have never seen a manager blatantly displaying discriminatory actions knowing that a video camera was running, as happened recently with the Minneapolis Police Department. In fact, discriminatory actions at work often are cloaked by pretextual reasons.
So how does an employee prove discrimination? Typically, it is not easy.
The Legal Meaning of Discrimination
To “discriminate” literally means to make a distinction, to treat differently. The legal meaning is much more. Title VII of the 1964 Civil Rights Act, the statute primarily applied in the workplace, prohibits discrimination because of, or “based on race, color, religion, sex and national origin.” The ADEA (Age Discrimination in Employment Act) protects employees 40 years and older from discrimination on the basis of age. The ADA (Americans with Disabilities Act) is consistent in protecting disabled employees.
It is that one word, “because,” which gives the answer as to why an employee was treated differently. “Joe was terminated because . . .” Was it because of the color of his skin, or because Joe was habitually late to work, as his manager claims? If you were on the jury and saw the badge-swipe records showing that Joe always arrived before his shift began and that he was never late, what would your answer be?
How Does an Employee Prove Discrimination?
There are several ways to prove discrimination in court. Direct evidence of discrimination hardly ever exists. It is rare to discover evidence that race, color, religion, or being a member of a “protected class,” as it is called, was the actual reason for the adverse employment action. I have had only a handful of cases, usually age discrimination, where the manager decided specifically to get rid of the “old people” and hire “younger” replacements.
More often, the employee must revert to circumstantial evidence for proof, such as showing that the real reason is not the one that management states. Years ago, in Texas Dept. of Community Affairs v. Burdine, the Supreme Court held that an employee can prove intentional discrimination “by showing that the employer’s proffered explanation is unworthy of credence.” This is called “pretexual” evidence, that the employer’s reason is not believable. Pretext can be proven in many ways, such as bogus write-ups immediately before the termination, a reason that is contrary to the facts of what happened, the decision violates the company’s own policies, the reason makes no sense, or the reason is just not true.
Another way to prove discrimination, although the most difficult, is by statistical evidence. This method of proof is used when employment policies are seemingly neutral on their face but in fact fall more harshly on one group than another and cannot be justified by business necessity. In recent years, the courts have issued opinions making statistical proof almost impossible by requiring the plaintiff employee to present an air-tight statistical case. Thus, the most common way of proving discrimination is by showing pretext, that the reason given by management is not the real reason for the discriminatory action, that the reason is “unworthy of credence.”
What Should You Do If You Believe that You’re Being Discriminated Against?
Remember: It is the “because” analysis that counts. Don’t jump to conclusions before you have the correct facts. I recommend to my clients first to talk with your supervisor and ask for an explanation about why the adverse action was taken. Give your supervisor the benefit of the doubt. Listen with “open ears” without prejudging the reason.
Next, think. Consider all of the current circumstances without bringing any old baggage into your analysis. If the reason given by your supervisor could be plausible, even if you don’t agree, that probably is the real reason.
However, if the reason does not make sense, is illogical from a business perspective, or is downright false, then your next action is to make a report to HR (Human Resources), which usually is required by companies’ policies. HR will investigate your report. If the investigation is performed fairly, you should accept the outcome, again, even if you don’t agree.
We Can Help
At Gardner Employment Law, we have handled probably hundreds of claims involving discrimination. We prevailed in a racial discrimination claim brought by our client, an African-American woman who attended her company’s diversity training. The HR director thought our client “had a problem” because she asked questions during the diversity training session. The case settled out of court.
In another case our client, an African-American RN, had been terminated as a “scapegoat” for an error committed by a White nurse during a surgical procedure. We settled out of court for damages, plus our client was given a two-page, glowing letter of reference by one of the senior physicians at the medical institution.
If you are not satisfied with your company’s response to your discrimination claim, feel free to give us a call. We can help you.