Without hard evidence, how is workplace discrimination proven?

Allegations of discrimination in the workplace persist, from age discrimination to racial bias. But what is required to turn an accusation into a successful lawsuit? Particularly if the plaintiff has no concrete evidence to support her claim of discriminatory behavior, how does a lawsuit result in anything more than conflicting accounts from opposing parties? How is discrimination in such a case proven in court?

Types of evidence

In cases of workplace discrimination, two types of evidence may come into play: direct and circumstantial. Direct evidence is clear evidence that directly points to wrongdoing. For example, if a manager sends a department-wide email announcing that employees over 50 will no longer be eligible for promotions, it would be easy to prove that the company is instituting a discriminatory policy.

In many discrimination lawsuits, however, direct evidence is hard to come by, forcing the plaintiff to rely on circumstantial evidence.

Circumstantial evidence relies on inference. It sets the stage to help a jury connect a discriminatory motive to a negative action. For instance, a 52-year-old plaintiff may have an eyewitness who overheard their manager disparaging the work ethic of employees over 50. If the plaintiff was subsequently fired, the plaintiff could use this evidence to prove a discriminatory motivation.

Burden shifting

In employment discrimination cases dependent upon circumstantial evidence, the plaintiff must show that a discriminatory animus more likely than not motivated the employer’s adverse action against her. The plaintiff must make a prima facie case of discrimination, establishing that:

  • The plaintiff belongs to a protected class — based on race, gender, age, disability, sex, etc.
  • The plaintiff was qualified for the job.
  • Despite her qualifications, the defendant took some negative action against the plaintiff — demotion, firing, etc.
  • The defendant treats other workers in the same position — but who are not in the plaintiff’s protected class — differently.

Once the prima facie case is made, the defendant has the opportunity to provide a legitimate, non-discriminatory basis for the negative action against the plaintiff. For instance, the employer may allege that the plaintiff was fired, not because of her age, but because of regular tardiness or because she failed to meet the job expectations.

The burden then shifts back to the plaintiff to prove that the employer’s proffered justification is merely pretext.

Proving or disproving workplace discrimination requires a nuanced understanding of the law. Collecting relevant evidence to support your claim is a crucial first step.


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