As an employment discrimination law firm, we get this question all the time. The truth is, it depends on the nature of your case. The courts have distilled the general nature of the evidence into distinct groups. Let me explain three of the most common examples below: wrongful termination, retaliation, and failure to promote.
Wrongful Termination on the Basis of a Protected Class or Characteristic. Basically, this means you were fired because of age, alienage, color, disability, sex, sexual orientation, military status, caregiver status, or other protected categories. (To find out all the types of categories that are protected under the law, please talk with one of our lawyers). In order to have a case, you must 1) Be a member of a protected class or have a protected characteristic; 2) you must have been terminated (or resigned under circumstances that constitute a constructive discharge); and 3) the circumstances surrounding your termination must give rise to an inference of discrimination. Generally, most employees considering whether to bring a claim of workplace discrimination will have easily met the first two elements. The third element is trickier to prove, but courts are mindful that in this day and age, smart employers are not going around broadcasting their discriminatory intentions or writing discriminatory memos. So, the courts allow an employee to use evidence of different treatment among the plaintiff (the person bringing the lawsuit) and comparators, co-workers with similar job duties and responsibilities who are not members of the plaintiff’s protected class. The employee can also use evidence of discriminatory comments made by the person responsible for the termination that are related to the termination. There are other ways to establish the third element, and you should speak with our attorneys to determine that.
Retaliation on the Basis of Having Reported Discrimination. This means that you complained to your employer about unfair treatment (even if it did not amount to an adverse action like a termination, demotion, or suspension) on the basis of your protected class or characteristic, and as a result, the employer took an action against you that would dissuade a hypothetically “reasonable” employee from making the same complaint. To make out a case, 1) you must have opposed an unlawful discriminatory practice or otherwise engaged in some activity protected by the law; 2) your employer was aware of the opposition; 3) Your employer subjected you to treatment that would dissuade a reasonable employee from engaging in the opposition or other protected activity; and 4) a causal connection between the two exists. Often, the retaliatory treatment follows closely in time with you speaking out about the discrimination–and that is sometimes referred to as temporal proximity. Temporal proximity has been used in court cases to meet the third element of causal connection. There are numerous other ways to establish the third element. You should speak with one of our attorneys to learn if those other ways apply to you.
Failure to Promote on the Basis of Protected Class or Characteristic. This means that you were passed over for a promotion because of your protected class or characteristic. Generally, to have a case, you must 1) be a member of a protected class or have a particular characteristic; 2) you were qualified for the promotion; 3) you applied for the promotion (although some exceptions apply, and you should speak with an attorney to determine this); 3) you were rejected for the promotion, and 4) the promotion remained open and the employer continued to seek applicants with your qualifications.