Sometimes proving discrimination in the workplace can be encouraging, discouraging, satisfying, frustrating and a host of other emotional, psychological, mental, physical and spiritual experiences.
Hello my name is Yancey and as an employee I have experienced all the above. Several years ago I was forced to defend my rights in the workplace and prove discrimination.
When I accepted an information technology position with my local government I expected that job discrimination would not be as much of a problem because it was government. After all, governments have a higher duty to enforce the laws of the land, right? After about six months I was given the sobering awakening that there was little difference between a government workplace and a private sector workplace.
I believe the level of blatant workplace bias I encountered from day one, would not have occurred in a private business. Why? Governments have “shields of immunity” from being sued. The reasoning for this is that governments have to be able to “govern”. If it were easy to sue a local, state or federal government they would be spending more time and your tax dollars defending in court.
Thus the term “You can’t fight city hall” was born. However, I and others have proved that is not true. I did fight for my rights and won. Why? I learned my basic employee rights and continue to learn. Out of that experience was born my passion to share with job seekers and fellow employees that you can learn basic employee rights.
Proving Employment Discrimination
There are situations that can happen in the workplace that are unfair, unjustified, demeaning and unpleasant. This however, does not make it unlawful discrimination. Discrimination in the workplace can be in your face and it can be hidden in the shadows. That’s what makes it so subtle, destructive and insidious.
An employment activity becomes a violation of Title VII of the Civil Rights Act of 1964 and the (ADEA) Age Discrimination in Employment Act when it involves:
gender or sex
disability (physical or mental)
According to (EEOC) Equal Employment Opportunity Commission guidelines there has to be some extra and separate issue associated with the above in any adverse employment decision. For example, “They didn’t give me a promotion because I’m black”. It’s not enough to just be black, a women, a Muslim, over 50, from Iraq or blind and prove employment discrimination. The most obvious test would be how employees of other races, religions, sex, disabilities, ages and national origins are treated under the same company policy.
Being treated differently isn’t illegal when the employer can show a lawful and nondiscriminatory reason for the difference. Employees in the “protected classes” mentioned above are protected against workplace discrimination. If I “feel” that I have been discriminated against, how do I prove it?
Proving Discrimination in the Workplace
There are two ways of proving discrimination in the workplace. In proving discrimination you will need direct proof and indirect proof. I know that these processes if properly applied work because I have used them successfully in my own struggle for workplace fairness and justice! “Disparate Treatment” is the standard test for proving job discrimination. The U.S. Supreme Court defined disparate treatment by the landmark Civil Rights decision McDonnell Douglas v. Green in 1973.
As discussed previously, disparate treatment is people being treated differently with respect to the terms and conditions of their employment because of their race, color, sex or gender, national origin, religion, age or mental or physical disability.
Employees or job seekers, who have been denied equal treatment as a result of prior discriminatory practices or policies, must be given equal opportunities that were in place for other employees or job applicants during the time of discrimination.
For the EEOC to decide you in fact have been discriminated against there has to be proof:
You were treat differently
You will need the name, age, sex, race, job title, where the individual(s) worked, who the manager is or was, and anything else relevant to the meet the required legal standard of proof. You want to be able to show how the other employee(s) were dealt with compared to you.
Employee with the same or similar job title
The employee given better employment opportunities should have the same job description and duties as you. They should also be of different sex, race, age, national origin, etc. Is the employee(s) bound by the same guidelines as you. Several questions need to be answered when compared to you.
Did they perform the same or similar job?
Did you have the same manager?
Did they perform a different job?
Were they more experienced than you?
Did they have seniority (employed longer) versus you?
Were they employed in the same department as you?
Were they under the same physical requirements of the job as you?
No nondiscriminatory and legitimate reason for different treatment
The EEOC has to determine if the employee(s) that were treated differently from you was based on something other than the characteristics mentioned under Title VII of the Civil Rights Act of 1964. An employer who “answers” a complaint filed by you with the Human Rights Commission of your state could claim:
the other employee(s) had consistently higher job evaluation ratings than you.
you violated some company policy
you had the least seniority or longevity
the favored employee(s) had more experience than you
the other employee(s) had a degree and you didn’t
Proving Job Discrimination
When proving discrimination ask the question, what reason did your boss give you for taking the negative action against you? If you don’t believe her, how do you prove it? Proving discrimination on the job requires proof or evidence. This proof can be available in several types.
What the EEOC needs will come in two forms direct and indirect proof or evidence.
This is based on the McDonnell Douglas v. Green “test” which was the landmark civil rights case decided by the U.S. Supreme Court in 1973. This is also called circumstantial evidence and the test asks four questions;
Are you in a protected class?
Being discriminated against because you are over 50 could be age discrimination. Being denied promotion because you are a woman and only men have gotten the job could be sex or gender discrimination.
Are you qualified for the job?
If you needed a degree in accounting for the accounting position.
Did the employer take an adverse employment action against you?
Did you receive unjustified negative job evaluations, unworkable change in scheduled hours of work or got fired.
Replaced by someone not in your protected class?
If for example you are a black male and replaced by a white male.
Because of the McDonnell Douglas test, an answer of yes to the above questions presumes discrimination and establishes a “prima facie” complaint or case. According to Wikipedia, “Prima facie is a Latin expression meaning "on its first appearance", or "by first instance". In common law jurisdictions, prima facie denotes evidence that (unless rebutted) would be sufficient to prove a particular proposition or fact.”
Enough circumstantial proof has to be provided for a court to decide discrimination has taken place. Answers of yes to these questions can help build circumstantial evidence in proving discrimination.
Is there a company history of unequal treatment of protected classes?
Has the employer violated it’s own policies and procedures in how it treated you?
Are there little or no other employees in your protected class?
Any other employees in your protected class also complain of being treated differently?
Are demeaning or insulting comments made aimed at your protected class?
Are less qualified non protected class employees hired and kept in positions the same or similar to yours?
The more affirmative answers you can give from these questions will help to build the circumstantial proof that adverse action was taken against you because of your protected class. Indirect proof can also be your written record of what you have experienced.
Proving Prejudice and Discrimination
This type of proof comes in various forms such as comments made by owners, managers, supervisors, vendors, employees and customers. It also involves witnesses, memos, dairies, emails, letters, policies, procedures, tape recordings and notes. One of the strategies I used to help me in proving discrimination was sending and responding to emails from my manager that required a response from him.
For example, several years ago my employer endeavored to deny my rights under the (ADA) Americans with Disabilities Act. Prior to this I learned all I could about the ADA. My manager sought to intimidate me with an “or else” email, wanting me to sign a medical examination authorization. Under ADA any employer request for an employee to take a medical exam has to be specific to the impairment or disability. In this case my back.
The authorization was worded in such a way that my employer would find out all types medical info that had nothing to do with my back impairment. I emailed him the exact ADA guidelines info and of course, he had no clue how to respond to that. He got others involved from human resources to the legal department. In the end they had to back off the issue. Why? Because I took the time to learn my basic employee rights! Using email with a required response created a nice paper trail that revealed:
my employer’s “bad faith” intent towards me (they wanted to use my back as a pretext to fire me)
my employer’s ignorance, arrogance and incompetence in attempting to violate my ADA rights
Now they knew I knew the ADA guidelines they were legally bound to follow. Because I had their own emails, they could not contest what they contained.
With the explosion of Social Media, companies like FaceBook and Twitter are being used by career seekers, employees and employers. Employees should be very careful about what they post on these sites about their workplaces.
Many businesses are now using social media sites not only to recruit but also to discriminate and eliminate job seekers and employees!
My experience as an employee and an employment mediator has revealed 4 things that give the employee a big advantage in proving discrimination.
Learn your basic employee rights before seeking and accepting employment!
The employer will usually assume you don’t know your basic employee rights!
The average supervisor or manager doesn’t know basic employee rights!
The employer doesn't want you to know your basic employee rights!
Proving Discrimination in an Occupation
The EEOC will also use statistical information to determine how a specific company policy affects other employees in your protected class. The EEOC will then contrast that data with other protected classes affected by the same policy. An example would be looking for the sex of everyone who is laid off. Statistical evidence is only valid in certain situations.
As I found out with my employer, laws making discrimination illegal against employees with a qualifying disability have some differences from those concerning race, sex, religion, age, etc. Thus, the kind of proof for proving discrimination because of a disability is different.
Your employer will always come up with denials of any wrongdoing in connection with any complaint you may file with the EEOC. Remember is it usually easy for an employer to state a reason other than your protected class as justification for adverse action against you. The company doesn’t need a good reason just a legal reason. If the employer provides an explanation for firing you the next step is for you to prove the reason is a “pretext”. Pretext means a false reason used to justify an action.
You will need to demonstrate that the declared reason for adverse action is:
inconsistent with how the company applies its written or stated policies and procedures
not lining up with the facts
not enough to justify your termination
most likely your protected class as the reason other than what was stated
disproved by compelling indirect and direct proof
Satisfying the requirements above may help you to establish your employer's true intent was to use your protected class as a means to “show you to the door”. When the need for proving discrimination occurs, always seek the advice of a qualified employment law attorney for guidance in defending your workplace rights.