Employment discrimination cases are very difficult to prove, and many are dismissed by the courts before they get to a jury for lack of proof. Employers and decision makers are smart enough to hide their true motives behind a termination, suspension, demotion, etc. They do not say anything that could be interpreted as discriminatory, nor leave a paper trail of discriminatory motives. Further, there are seldom any eyewitnesses to the discrimination.

Because of the difficulty of obtaining direct evidence of discrimination, courts have fashioned a remedy to prove discrimination by indirect means. That is, you do not need any direct evidence of discrimination, such as recorded conversations or emails wherein the decision-maker makes discriminatory remarks prior to termination or other adverse action.

Federal courts and most state courts have adopted what is referred to as the McDonnell Douglas burden-shifting framework. Under this framework, in the absence of direct evidence of discrimination, courts permit a plaintiff to present her case to a jury if she comes up with circumstantial evidence sufficient to demonstrate that her termination was more likely than not motivated by discrimination.

Using age discrimination as an example, the framework is analyzed as follows:

Prima Face Case

If the plaintiff sets forth a prima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff. The plaintiff sets forth a prima facie case of age discrimination if she demonstrates that (1) she was age 40 and over; (2) she was qualified for the position from which she was fired; and (3) she was fired or suffered other adverse employment decision; (4) she was replaced by a sufficiently younger person to create an inference of age discrimination, or the termination took place under circumstances that give rise to an inference of unlawful discrimination.

Legitimate non-discriminatory Reason for Termination

After the plaintiff establishes a prima facie case, the burden then shifts to the employer to come up with what is referred to as a “legitimate non-discriminatory reason for the employer’s action." That is, the employer must provide proof that they fired the plaintiff for a reason other than her age. For instance, the employer may claim it fired the plaintiff for work performance, a very common defense.

Pretext or not true motivated

After the employer comes up with a non-discriminatory reason for termination, the burden then shifts back to the plaintiff to come forward with evidence demonstrating either (1) that the employer’s non-discriminatory reason for terminating her was either unworthy of credence, or (2) discriminatory animus more likely than not motivated plaintiff’s termination.

The plaintiff is required to satisfy only one of the two above tests, not both. Under the first part of the the test, the plaintiff may show that the employer’s claimed non-discriminatory reason for her termination was either a post hoc fabrication (a sham) or otherwise did not actually motivated the employer. An example of a post hoc fabrication (a sham) would be the employer telling the employee that she was being fired for not meeting certain sales quotas, but in court papers (answer to complaint) claimed that they fired the employee for a history of disciplines. An example of a situation where the employers reason for termination (advanced in court) “did not actually motivate the employer" occurs where the employer never informed the employee that the reason for her termination was her disciplinary history (which was advanced in court), but did not terminate other employees for similar disciplinary problems. That is, the employee’s discipline did not actually motivate her termination.

If the plaintiff is able to show that the employer’s advanced reason was a post hoc fabrication (a sham) or otherwise did not actually motivated the employer’s to fire her, a judge may not dismiss her case, and she is entitled to present her case to a jury.

If the plaintiff is unable to show a post hoc fabrication (a sham) or otherwise the employer’s advanced reason for termination did not actually motivated the employer, she may still be able to get her case to a jury if she can show that (1) the employer discriminated her in the past; (2) the employer treated others in similar situation more favorably; or (3) the employer discriminated against other similar situated employees.

For instance, in an age discrimination case, the plaintiff could show that the employer (1) treated her differently because of her age, or (2) did not discipline substantially younger employees for the same conduct for which it disciplined the plaintiff, or (3) discriminated against other older employees for conduct which it ignored when committed by substantially younger employees.

The plaintiff is not required to show each of the above. She may demonstrate any one of the three sub-tests. Further, a plaintiff need not prove that discrimination was the only factor, or the sole or exclusive factor in the decision to fire her, but a factor.

Discriminatory application of an employers’ disciplinary policy is sufficient demonstration of discrimination. That is, evidence of similarly situated employees were not treated equally is sufficient for the plaintiff to present her case to a jury.

Employment discrimination cases are very complex, costly and time consuming for both the plaintiff and the employer. However, if there is sufficient proof of discrimination, you may be able obtain proper compensation for the employer’s illegal action, including past lost wages, future lost wages, damages for emotional distress, punitive damages and attorneys’ fees. While many discriminations cases do not make it to the jury, and are dismissed by the court on summary judgment, where there is sufficient proof of discrimination, a plaintiff is more than likely to win her case before a jury, especially in state courts, where a jury is more employee-friendly.