HOW TO PROVE DISCRIMINATION
There are two ways an employee or applicant can prove unlawful discrimination:
(1) DISPARATE TREATMENT CASES (“BECAUSE OF”)
An individual suffers disparate treatment if he or she is treated less favorably (in terms of compensation, conditions, or privileges of employment) than others “because of” the employee or applicant’s protected status (i.e. disability, race color, sex)
In disparate treatment cases, the court’s use a three-step process that is based on the burden-shifting test that was established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [McDonnell Douglas].
STEP 2 [EMPLOYER’S BURDEN]: If the employee is able to establish the above elements (i.e. a prima facie case), there is a presumption of discrimination and the employee or applicant is entitled to a judgment unless, under the second step of the McDonnell Douglas test the employer is able satisfy its burden and produce evidence of a legitimate, nondiscriminatory reason for the challenged action (i.e. write up or termination).
STEP 3 [EMPLOYEE’S BURDEN]: If the employer is able to satisfy its burden and proffer a nondiscriminatory reason, the burden shifts back to the employee or applicant who under the third step of the McDonnell Douglas test must produce evidence either (a) directly by persuading the court that a discriminatory reason more likely motivated the employer or (b) indirectly by showing that the employer’s proffered explanation is untrue, unworthy of credence, not sincere or pretextual. The employee can show this by showing that the employer’s proffered explanation is untrue or that it did not actually motivate the employer’s decision or that it was insufficient to motivate the termination or adverse employment action.
What is Discriminatory Animus?
An employee may prove discrimination by either direct or circumstantial evidence. Direct evidence is evidence, which, if true, proves the fact of discriminatory motive/animus without inference or presumption. A single remark can show a discriminatory motive/animus. It is very rate for employees to have direct evidence such as a statement or document that expresses a discriminatory motive made by the key decision maker or those in a position to influence the decision maker discrimination. As a result, the courts permit employees to prove discrimination with circumstantial evidence which permit an inference that it is more likely than not that the employer treated the employee less favorably due to the employee’s protected status. Circumstantial evidence can be shown in the following ways:
- The employer has a pattern or practice of discriminating against persons’ in the employee’s protected category;
- Suspicious timing of the adverse employment action.
- The employee or applicant’s qualifications were superior to the qualifications of the persons the employer employed
- Derogatory or inappropriate comments.
- The absence of any other explanation making it more likely than not that those actions were due to impermissible considerations.
- Evidence of mere thoughts or passing statements unrelated to the disputed employment decision is not sufficient evidence.
- An employee does not meet the burden of showing pretext by simply showing the employer’s decision was wrong or mistaken.
STEP 1[EMPLOYEE’S BURDEN]: Under the first step of the McDonnell Douglas test, the employee or applicant may raise a presumption of discrimination by presenting the following elements:
(2) DISPARATE IMPACT OR ADVERSE IMPACT CASES
This occurs when the employer has a practice that appears facially neutral policy but has caused a protected group to suffer adverse effects. In disparate impact cases, the employee or applicant must prove the following elements:
CONTACT A LOS ANGELES DISCRIMINATION LAWYER
If you have been discriminated in the workplace based on a disability or medical condition, it is crucial that you speak to a Los Angeles disability discrimination attorney who has the skills to help prove these allegations. Los Angeles discrimination lawyer Morris Nazarian has successfully represented several employees who have been who have been subjected to discrimination. Please contact Los Angeles Employment Attorney Morris Nazarian by calling (310) 284-7333 to make an appointment for a free initial consultation or please fill out the Employment Law Case Evaluation Form and Los Angeles Employment lawyer Morris Nazarian will call or email you as soon as possible.