How do I Prove Discrimination?

Let our Los Angeles Discrimination Lawyers Explain

Legal standards have evolved that try to prevent frivolous cases from going forward into the heart of the legal system, trial by jury. Each case of sexual harassment, discrimination or retaliation must first pass a prima facie test. Prima facie is a term that means, “at first glance”, and creates specific criteria to determine if you can proceed with your charge of harassment, discrimination or retaliation. Different jurisdictions may use different prima facie standards. It is incumbent upon you to find out what the current prima facie standards are in your jurisdiction, and ensure that you meet them.

Prima Facie Case for Gender Discrimination- The standard for determining gender discrimination was established in a Federal case, McDonnell Douglas v. Greene, 411 U.S. 792 (1973). McDonnell Douglas created a four-part test to establish a prima facie case for gender discrimination. This is the first big obstacle you must overcome.

  1. You must be a member of a protected class. Protected classes are defined by race, gender, national origin, religion, age and disability. As a woman, you are a member of a protected class. The premise is that people in protected classes should be treated no differently than someone who is not a member of that class. You are legally “protected” from discrimination based solely upon the fact that you are a woman.
  2. You must be qualified for the position you were in. This is not always that easy to prove. Typically, there will be criticism of your performance as justification for whatever job action was taken. Employers are wise enough to know that they must have adequate criticism of your performance to protect themselves against lawsuits. Defense attorneys are trained to have you admit that you were criticized, and then use that against you. This tactic influences many judges and judges even use your own testimony in their decision, e.g. “plaintiff has admitted that her superiors criticized her job performance”.You will need to show that you were performing your job satisfactorily and can do this in a number of ways. Know the details of all your assignments and be able to recall them clearly, quickly and consistently. Use copies of your prior performance appraisals showing your typical ratings. Use any and all letters of commendation that you can obtain. Ask your clients, co-workers, customers, staff, etc. to give you letters of commendation. Keep copies of all your work to demonstrate the quality of your work. Obtain copies of other employees work to show the comparison. If possible, obtain copies of a white male’s work who is similarly situated to you. Demonstrate that his work was similar to yours, but he was not criticized. Obtain the company policy manual describing performance appraisals and performance criticism. Demonstrate that the criterion used to criticize you was not in accordance with company policy.Many companies use subjective criteria, e.g.” she is not a team player, she does not communicate well, etc”. Establish that criteria for making job decisions should be objective, time bound, measurable and realistic. If possible, demonstrate that prior appraisals or appraisals of other employees fit these criteria while yours did not. Try to find contradictions in what your superiors have said. Did they criticize you for poor communications when they have previously awarded you for good communications? Did they laud you for your technical skills in one timeframe, and then criticize you for lack of technical skills in the same timeframe, or close to it? Did your job performance deteriorate rapidly according to them? Courts and juries will tend to disbelieve a precipitous drop in your job performance, if you have a strong history before the drop. Rebut your discriminatory job action. Get it on record that you do not agree with the discriminatory action and its fraudulent justification.If you know that your superior is documenting you and criticizing you due to discrimination, document it and tell him so in a letter. List all of your accomplishments and reasons for contesting the adverse job action. File a complaint with your Human Resource department and/or EEOC, and ask for an investigation. Continually rebut all unfair job actions taken against you, and get it on record. This will help you when you get to court.
  3. Despite your qualification for the position, an adverse employment decision was made against you, e.g.,you were discharged or demoted, received a bad performance review, did not get a raise, did not receive a bonus, did not receive training, were transferred to a lesser job, etc. This should be easy to show by the adverse job action taken against you.
  4. The position was filled by someone outside of your protected class. This is another difficult point to prove, especially in companies that are legally savvy. Many companies have learned that they can cheat the legal system by discriminating against women, and then replacing one woman with another woman. If the company downsizes or restructures, and does not fill the position, it may be possible to substitute other evidence of gender discrimination for this fourth element. For layoffs, you do not need the fourth prong of McDonnell Douglas.

For all elements of your case, you will need as many examples of case law as you can find where the court found discrimination on facts similar to yours. You will want your case law to be at the highest court possible in your jurisdiction, and to still be the current standard. You may also want to supplement the most persuasive case law with additional case law from other jurisdictions and lower courts.

Prima Facie for Sexual Harassment

To establish a prima facie case for sexual harassment, you must show that:

There were unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when

  1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual’s employment,
  2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Prima Facie for Sexual Harassment, Hostile Environment- To establish a prima facie case for hostile work environment sexual harassment, you must prove

  1. You suffered intentional discrimination because of your sex.
  2. The discrimination was pervasive and regular.
  3. The discrimination detrimentally affected you.
  4. The discrimination would detrimentally affect a reasonable person of the same sex.
  5. Management knew about the harassment, or should have known, and did nothing to stop it.

Prima Facie for Retaliation – To establish a prima facie case of retaliation, a woman must show by a preponderance of evidence that

  1. She engaged in a protected activity known to the employer.
  2. The employer thereafter subjected her to an adverse decision.
  3. There was a causal link between the protected activity and adverse employment decision. Protected activities usually encompass making discrimination and harassment activities known to management, participating in Managing Diversity programs, assisting another employee with a discrimination complaint and other similar activities.

If you have ever felt discrimination at work, please contact our Los Angeles discrimination attorneys to help you now.

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