How can an employee prove employment discrimination?

If your employer discriminates against you, how can you prove it in court? Proving employment discrimination can often be difficult because evidence of discrimination tends to be hard to come by. However, there are a few ways wronged employees can make their claims in court and get their case in front of a jury.

In Texas, the default rule is that an employer can fire an employee at any time for any reason. This is called employment-at-will. However, certain federal and state statutes place limitations on the employment-at-will doctrine by prohibiting employment discrimination, preventing employers from basing their employment decisions—hiring, firing, promoting, and paying—on an employee belonging to a protected class.

Protected classes are listed in various statutes. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, sex, religion, or national origin. The American with Disabilities Act prohibits discrimination based on an employee’s disability. Similarly, the Age Discrimination in Employment Act protects employees over the age of 40 from discrimination.

One of the ways an employee can succeed on an employment discrimination claim is to show that his employer intended to discriminate against him. The key focus then is on the intent of the employer. Wronged employees have three ways of proving their employers intended to discriminate: circumstantial evidence, direct evidence, and pattern and practice.

Circumstantial evidence is evidence that proves a fact by inference, as opposed to direct evidence which directly proves a fact. For example, sunlight coming in through a window is circumstantial evidence that the sun is out (albeit very strong circumstantial evidence), while looking outside and seeing the sun itself would be direct evidence that the sun is out.

Circumstantial evidence is the most common method by which employees prove their discrimination cases. Courts have developed a framework to analyze circumstantial evidence in employment discrimination cases called the McDonnell Douglas framework.

The employee must first present evidence that he is a member of a protected class, he was qualified for the position he held, he suffered an adverse employment action such as being fired, and that he was replaced with another worker who is not a member of that protected class. If the employee can establish these things, then the burden shifts to the employer to provide evidence that there was a legitimate reason for the employee’s adverse employment action.

If the employer presents evidence showing that there was a legitimate reason for the adverse employment, the burden shifts back to the employee to show that the employer’s reason is just a pretext for discrimination or is combined with a discriminatory motive.

For example, an employee who is black (a protected class) and qualified for a position, is fired, and is replaced by a white employee can establish the first step under the McDonnell Douglas framework. However, if the employer presents evidence that the employee was fired because of his tardiness, the employee must show that this reason for firing is just a pretext for discrimination.

Direct evidence is evidence that proves discrimination without any inferences or presumptions. Direct evidence can be statements, written documents, or emails. When it comes to employment discrimination, direct evidence is hard to come by. It’s not often that an employer sends an email to its employee saying that she’s being fired because she’s a woman. If so, that would be direct evidence of employment discrimination.

Evidence of pattern and practice is used in class action lawsuits to demonstrate that an employer has a continuing pattern of discriminatory decisions.