Believing that you have been the victim of workplace discrimination is one thing: proving that you have in fact been unfairly discriminated against on the basis of your race, age, ethnicity, or another protected classification is another. When you file a private employment discrimination lawsuit against your employer, you as the plaintiff have the burden of proof to produce evidence and/or testimony that proves it is more likely than not true that you were unlawfully discriminated against. Unless an employer were to agree with you that it had in fact unfairly and unlawfully discriminated against you on the basis of a protected category, you will need to support your claims of discrimination with evidence. Your testimony and conclusion that you suffered discriminatory actions, standing alone, will rarely be enough to allow your case to succeed.
Your Employer Will Deny Discrimination
Suppose that a coworker of a different race was promoted recently but you were not. Suppose further that, as far as you are aware, there are no differences in qualifications, education, or experience between you and the coworker. You may conclude that race was the only reason why your coworker was promoted and you were not. After filing a claim with the Equal Employment Opportunity Commission and/or the Arizona Attorney General, you receive notification of your right to sue and bring an employment discrimination lawsuit against your employer.
In defending itself your employer will most likely argue that the disparate treatment is not the result of discrimination but of differences between you and your coworker as candidates for promotion. Your employer will look for evidence it can show demonstrating that:
- The coworker went to a better school than you;
- The coworker has received better performance reviews or peer reviews than you;
- The coworker has experience that appears to be more applicable to the job to which he or she was promoted.
In other words, the employer will attempt to point to any nondiscriminatory reason that it can to suggest why your coworker was promoted and you were not. If the employer can find such a reason, the burden shifts back to you, the plaintiff, to show that the employer’s proffered reason for the disparate treatment is merely a pretext – a lie, essentially – and that the disparate treatment truly was inspired by discriminatory motive.
How Can I Prove My Employer Discriminated Against Me?
Most every employer will not admit to discriminating against its employees, even if they regularly do. Instead, you will need to look for and preserve evidence and testimony that can bolster the credibility of your claim. This may include:
- Data and personnel records that can establish a pattern of how the employer has treated individuals who are from the same race, ethnicity, and/or national origin as you (or who are otherwise similar enough to you that a pattern of disparate treatment can be established);
- Your own employment records and those of coworkers, if your employer is claiming there are nondiscriminatory differences between you and the other coworker;
- E-mails and communications between the supervisors responsible for the discrimination. These communications may contain references to or information concerning the true reason for the adverse action you suffered. For example, a supervisor’s e-mail that refers to you using a racial slur and that directs a subordinate to fire you can be extremely persuasive in showing that your employer did in fact discriminate against you.
- The experiences of other employees, both past and present, can also prove to be persuasive to a court hearing a discrimination lawsuit.
Locating, analyzing, and preserving this evidence and testimony can be challenging and time consuming for most laypersons. It is highly recommended that you retain the services of an experienced employment discrimination attorney as soon as possible in order to best protect your legal rights and ability to pursue a private discrimination lawsuit.