New Jersey Employment Lawyer Blog

The Timing of the Employer's Decision

In some instances, the timing of an employment decision can help prove it was discriminatory. While this most frequently comes up in retaliation cases, it also arises in some types of employment discrimination cases. For example, if your boss starts treating you worse soon after you announce you are pregnant, or fires you when you try to return from a maternity leave, that might help prove gender and pregnancy discrimination. Similarly, if your employer demotes or fires you for no good reason after you request time off because of a medical condition, that could help support a disability discrimination claim.

Documents and Witnesses

While most evidence of employment discrimination often comes from the victim of the discrimination him or herself, it can be very helpful to have documents and witnesses to support your claim. For example, current or former coworkers might confirm that your boss made discriminatory remarks, or have inside information about the company's real reasons for its actions toward you.

In addition, documents might help prove the company's explanation for firing you was false, or reflect your supervisor's discriminatory attitudes. This can include traditional work-related documents like performance reviews and termination letters. It can also include a variety of other documents, such as emails, pictures, audio recordings, text messages, or even postings on websites like Facebook or MySpace<.

For more information, please see my articles How Do I Prove Employment Discrimination?, which discusses proving discrimination based on the employer's discriminatory statements, and evidence the employer's explanation for its actions is false, and Additional Ways to Prove Employment Discrimination, which is about proving discrimination based on the employer's pattern of discrimination, and favoritism of people outside your protected group.

If you have a question about your employment law rights in New York or New Jersey, contact an experienced employment law attorney in your area.

The Employer's Pattern of Discrimination

In addition to the topics discussed in my previous article, How Do I Prove Employment Discrimination? (discriminatory statements of the employer and evidence the employer's explanation is false), you also might be able to help prove discrimination by a pattern of discrimination. In other words, you can support your discrimination claim if you can show that your company tends to treat people of your race, gender, age, or other legally protected category worse than other employees.

For example, if the last three employees the company fired were in their 60's, that could support your age discrimination claim. Or, if the company you worked for had a mass layoff or reduction in force, and a significantly greater percentage of African American or Hispanic employees were laid off than the percentage of African American or Hispanic employees at the company, then that could help prove you were the victim of race discrimination.

The Employer Favored People Outside My Protected Group

Another thing that can help demonstrate discrimination is if your boss favors employees who are outside of your protected group for no good reason. However, it is important to remember that favoritism is not illegal unless it is based on a legally protected category such as race, age, or gender.

For instance, if you are a woman, and your supervisor gives better job assignments or performance ratings to male employees, even though the female employees are just as good (or even better) at the job, that might help prove gender discrimination. Likewise, if your boss favors employees who are of the same race or religion as him, without any job-related reason, that might be evidence of discrimination because of race or religion.

My next article, Even More Ways to Prove Workplace Discrimination, discusses proving discrimination based on the timing of the employer's decision, and through documents and witnesses. If you worked in New York and New Jersey, you should consider contacting an employment lawyer to discuss whether you have enough evidence to prove you were the victim of discrimination.

State and federal employment laws in both New York and New Jersey make it illegal for employers to discriminate against employees because of their age, race, gender, pregnancy, disability, color, national origin, sexual orientation, or veteran/military status. But how do you prove your employer's actions were discriminatory?

The Employer's Discriminatory Statements

If the employee who took a discriminatory action toward you made discriminatory comments or jokes, then that can help show the decision to fire, demote, or take another adverse employment action against you was discriminatory. Similarly, if your boss called you or other employees in your protected group discriminatory names, that could help support a claim of discrimination. The closer in time the discriminatory comments were to the adverse employment decision, and the more related they were to the adverse decision, the better.

For example, if your supervisor called you a dinosaur "old man," or repeatedly commented about your age in the weeks or months before he fired you, that is probably strong evidence of age discrimination. Similarly, if your boss frequently made jokes about your race, color, national origin or religion, that would help prove his decision to demote or fire you was discriminatory.

Evidence the Employer's Explanation is False

Perhaps the most common way to prove discrimination is by showing the company's explanation for its decision to fire, demote, or take another employment action against you is false. Employment discrimination lawyers call this false reason a "pretext" for discrimination. In the right circumstances, evidence of pretext, plus the fact that you are a member of a protected group, can be enough to prove discrimination. However, it is always helpful to have additional evidence to prove your discrimination case.

For instance, if the company claims it fired you because it eliminated your job, but they advertise to replace you a few days later, that could be evidence of discrimination. It also could help you show discrimination if your new boss claimed the company fired you because of your job performance, but your performance reviews have always been excellent, you have never been warned about your job performance, and several of your coworkers with poor performance records were not fired.

Next week's article, Additional Ways to Prove Employment Discrimination, discusses proving discrimination based on the employer's pattern of discrimination, and favoritism toward people outside your protected group. The week after that I will address Even More Ways to Prove Workplace Discrimination, which talks about proving discrimination based on the timing of the employer's decision, and through documents and witnesses.