How Do I Prove Employment 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.