Determining Discrimination

Protest against discrimination

There are various elements, in both the federal and state laws, which help an employee in determining whether he/she might have been treated wrongfully. For example: if the employee feels that his/her employment rights have been violated because of race, color, sex, religion, national origin, age, disability, or retaliation.

Discrimination claims

In order to determine whether or not the employee has been discriminated against, evidence is required.

Evidence of discrimination

Direct evidence is evidence in the form of a communication—e.g., a letter, memo or note—to reinforce the claim that the employee was subjected to discrimination, if the statement by a manager or supervisor directly relates to the unlawful action against the employee because of his/her protected class status. For example: A manager does not promote a qualified and deserving female executive to a vacant higher position, statingthat only a man can fill the position. The female can then claim discrimination.

Circumstantial evidence: Most employers are not so foolish as to make statements, or write or sign documents, that suggest bias or discrimination. They are well informed on legal issues when it comes to dealing with employees.

The courts recognize that direct evidence is often hard to come by and have accepted indirect evidence. Under the framework first developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), where there is no direct evidence of discrimination, a petitioner (the employee) must present circumstantial evidence of intentional discrimination. First presenting a prima facie (“before closer inspection”) case of discrimination, this eliminates the most common nondiscriminatory reasons for the petitioner's rejection.

McDonnell Douglas Test (named after a famous Supreme Court decision) sets forth a four-part test for establishing a prima facie case of discrimination in an employment context. Under this test, a complainant can establish a prima facie case by showing:

• That he/she is a member of a protected class. Protected classes are defined by race, gender, national origin, religion, age and disability. A woman is a member of the protected class.
• Qualification for the job in question. If the job requires an MBA degree. Is the female executive in the example above an MBA?
• An adverse employment action despite the qualification. Demotion or being fired from the job.
• Circumstances supporting an inference of discrimination. Being replaced by someone who is not in the protected class.

The law says that if an employee files a complaint against the employer for employment discrimination, as long as the McDonnell Douglas four-part test has been met, the employee has provided enough for the complaint to proceed. It will be presumed by the law that a qualified employee was not hired or was terminated, demoted, not promoted, etc., in favor of someone not in the protected class, and that the protected class status was the reason for claiming adverse action.

There has been gradual modification in the test to avoid a mechanistic approach to discrimination cases. The employee who does not have direct evidence to claim discrimination must produce circumstantial evidence to verify the claim. The law also considers that the employee can be discriminated against, even if he/she was not part of a protected class. In such cases, the following questions may aid in claiming discrimination:

• Was the employee mistreated in comparison to the employee(s) in the same position who were not of the same protected class?
• Did the manager or senior authority make insulting and rude comments targeting the employee of the protected class status, or members of the same class and related to work?
• Are the circumstances of the employee's treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
• Does the employer have a history of showing bias toward persons in your protected class?
• Has the employee noticed that other employees of their protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
• Are there statistics that show favoritism towards or bias against any group?
• Did the employer violate well-established company policy in the way it treated you? (If there’s an employee manual, read it.)
• Did the employer retain less qualified, non-protected employees in the same job?

If the answer is positive (“Yes”) to the McDonnell-Douglas questions and to several of the above questions, the employee can believe that his/her protected class status caused the adverse employment action.

Employer Feigning Ignorance

Most employers are smart, and can come up with good enough reasons to prove that an action was taken for a just cause or no cause. Once the employer gives a lawful reason for the action and feigns ignorance about any discriminatory practice, the law does not require the employer to prove the reason. The employee’s initial established presumption of discrimination falls flat, and he/she has to present additional evidence to support the claim.

It rarely happens that the employer cannot offer a legitimate reason for the action. Then the employee has to prove that the stated reason is phony and just an excuse to cover-up discrimination. The employee should be ready with his/her support to prove that the employer is feigning ignorance.

He/she needs to prove that the reason given by the employer is:

• Incorrect and Fictitious
• Inadequate
• Full of errors
• Not reliable

He/she needs to show:

• That the protected status was the real reason, and the employer's stated reason was not.
• Powerful direct and circumstantial evidence of discrimination.

In short, the employee has to prove that the employer's stated reason is a cover-up act. The law requires the employee to not only show that the stated reason is fictitious, but also that the real reason was the protected status.

Where to file a charge?

If the employee believes that he/she has been discriminated against by the employer when applying for a job or while on the job— because of race, color, sex, religion, national origin, age, or disability—or discriminated against because of his/her opposing a prohibited practice or participating in an equal employment opportunity matter, the employee may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).

Charges may be filed in person, by mail or by telephone by contacting the nearest EEOC office. If there is not an EEOC office in the immediate area, call toll free 800-669-4000 or 800-669-6820 (TDD) for more information.

Time frame to file the charges

There are strict time frames in which charges of employment discrimination must be filed. To preserve the ability of the EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, adhere to the following guidelines when filing a charge.

Title VII of the Civil Rights Act of 1964 charges must be filed with the EEOC within 180 days of the alleged discriminatory act. However, in states or localities where there is an anti-discrimination law and an agency authorized to grant or seek relief, a charge must be presented to that agency. Furthermore, in such jurisdictions, you may file charges with the EEOC within 300 days of the discriminatory act, or 30 days after receiving notice that the state or local agency has terminated its processing of the charge— whichever is earlier. It is best to contact the EEOC promptly when discrimination is suspected. When charges or complaints are filed beyond these time frames, you may not be able to obtain any remedy.

Americans with Disabilities Act (ADA) - The time requirements for filing a charge are the same as those for Title VII charges.

Age Discrimination in Employment Act (ADEA) - The time requirements for filing a charge are the same as those for Title VII and ADA charges.

Equal Pat Act (EPA) individuals are not required to file an EPA charge with the EEOC before filing a private lawsuit. However, charges may be filed with the EEOC and some cases of wage discrimination also may be violations of Title VII. If an EPA charge is filed with the EEOC, the procedure for filing is the same as for charges brought under Title VII. However, the time limits for filing in court are different under the EPA. Thus, it is advisable to file a charge as soon as you become aware that the EPA may have been violated.