It is a deeply painful and invalidating experience to believe you have been treated unfairly at work because of who you are. Whether you were passed over for a promotion, paid less than your colleagues, or terminated without a valid reason, the suspicion that it was due to your race, gender, age, or another protected part of your identity can be devastating. You know in your gut that something is wrong, but you may be left wondering, “How can I possibly prove it?” This is often the biggest hurdle for victims of workplace discrimination.
Proving discrimination is not easy. Employers rarely admit to their biases, and they are often skilled at creating a paper trail to justify their actions. However, it is not impossible. The New Jersey Law Against Discrimination (NJLAD) is one of the most comprehensive anti-discrimination laws in the country, and it provides a powerful framework for holding employers accountable. At Savo, Schalk, Corsini, Warner, Gillespie, O’Grodnick & Fisher , we have extensive experience in uncovering and proving even the most subtle forms of workplace discrimination. We know how to build a case and fight for the justice you deserve.
Understanding the Two Types of Discrimination Evidence
In the eyes of the law, there are two main types of evidence that can be used to prove a discrimination claim: direct evidence and circumstantial evidence.
Direct Evidence: This is the proverbial “smoking gun.” Direct evidence is a statement or action by an employer that, on its face, shows a discriminatory motive. For example, if a manager tells an employee, “I’m not promoting you because you’re too old for this job,” that is direct evidence of age discrimination. If you have an email or a witness who heard a supervisor use a racial slur, that is direct evidence. However, direct evidence is rare. In today’s world, most employers are savvy enough to avoid making overtly discriminatory statements.
Circumstantial Evidence: Because direct evidence is so rare, most discrimination cases are proven through circumstantial evidence. This is evidence that does not directly prove discrimination but allows a judge or jury to infer that it occurred. A strong case is often built by piecing together multiple forms of circumstantial evidence to create a convincing picture of a discriminatory motive.
Building a Case with Circumstantial Evidence
Under the NJLAD, most discrimination cases follow a three-step burden-shifting framework. This framework allows you to prove your case with circumstantial evidence.
Step 1: The Employee Establishes a Prima Facie Case.
First, you (the employee) must show four things to establish a “prima facie” (or legally sufficient) case of discrimination:
- You are a member of a protected class (e.g., based on race, gender, age, disability, etc.).
- You were qualified for your position and performing your job duties satisfactorily.
- You suffered an adverse employment action (e.g., you were fired, demoted, not hired, etc.).
- The adverse action occurred under circumstances that give rise to an inference of discrimination (e.g., you were replaced by someone outside of your protected class).
Step 2: The Employer Provides a Legitimate, Non-Discriminatory Reason.
Once you have established your prima facie case, the burden shifts to your employer. They must provide a legitimate, non-discriminatory reason for the adverse action. For example, they might claim you were fired for poor performance, insubordination, or because your position was eliminated.
Step 3: The Employee Proves the Reason is a Pretext.
This is the most critical step. You must show that the reason your employer has given is a “pretext”—a false excuse to cover up the real, discriminatory reason. This is where you prove your case. You can show pretext in several ways:
- Showing the reason is false: For example, if your employer claims you were fired for poor performance, but you have a history of excellent performance reviews, you can argue the reason is false.
- Showing the reason is not credible: You can present evidence that the employer’s explanation has changed over time or is not believable.
- Showing the employer did not follow its own policies: If your employer has a progressive discipline policy but fired you without warning, it can be evidence of pretext.
- Showing the employer treated similarly situated employees differently: If you were fired for being late, but other employees outside of your protected class were also late and were not fired, it is strong evidence of pretext.
The Importance of Documentation
As you can see, proving a discrimination case often comes down to the details. That is why documentation is so important. If you suspect you are being discriminated against, you should:
- Keep a detailed journal of all incidents of discrimination.
- Save all relevant documents, such as emails, performance reviews, and your employee handbook.
- Request a copy of your personnel file.
This documentation can be invaluable in building your case and proving that your employer’s stated reason for their actions is a pretext.
You Don’t Have to Prove Your Case Alone
Reading about the legal burdens of proof can be intimidating. It can make you feel like the odds are stacked against you. But you do not have to take on this fight alone. An experienced employment law attorney knows what evidence to look for, how to obtain it through the legal discovery process, and how to present it in a compelling way.
At our firm, we are skilled investigators and tenacious litigators. We know how to expose pretext and hold employers accountable for their discriminatory actions. We believe that no one should be denied an opportunity because of who they are.
If you believe you have been the victim of workplace discrimination, we urge you to contact us for a free, confidential consultation. Let us help you understand your rights and build the strong case you need to get the justice you deserve.
Frequently Asked Questions (FAQ)
Q: What is an “adverse employment action”?
A: An adverse employment action is a significant negative change in the terms and conditions of your employment. This includes obvious actions like being fired, demoted, or having your pay cut. It can also include more subtle actions like being transferred to a less desirable position, being given an unfair performance review that affects your compensation, or being denied a promotion.
Q: I think I was discriminated against, but I wasn’t fired. Do I still have a case?
A: Yes. You do not have to be fired to have a discrimination claim. If you have been subjected to any adverse employment action because of your protected characteristic, you may have a case. This includes claims for discriminatory pay, failure to promote, and harassment.
Q: How can an attorney help me get the evidence I need?
A: An attorney can use the legal discovery process to obtain evidence from your employer that you would not be able to get on your own. This can include internal emails and documents, information about how other employees were treated, and testimony from supervisors and coworkers under oath. This is often where the most critical evidence of pretext is found.