How to Tell if There is Discrimination
Here are some questions to ask yourself:
What is your protected group?
- A 55-year-old African-American Methodist woman from Jamaica with epilepsy could in theory file a charge or lawsuit alleging discrimination because of race, sex, age, national origin, religion, and disability, or some combination, but that’s a lot to prove.
- If there was only one type of discrimination but six were alleged, the judge and jury might give up on the case before they get to the good claim.
- It may be that the case has to proceed on a couple of theories before there is enough evidence to trim it down to a single winning theory, but it is critical to drop bad claims and focus on the good claims. If that can possibly be done at the beginning, so much the better.
How has your group done in the workplace?
- Take a look around. Which groups are getting the best jobs in the workplace? Which are getting the worst jobs?
- Is there a combination of groups—such as black women—doing worse than anyone else?
- Is there an atmosphere in the workplace that demeans some group?
- Do some high-level managers stereotype some groups?
- Do some decision-makers favor members of a particular group only if they fit some stereotype?
Who made the decision you’re unhappy about?
- If the person making the decision is the same person who hired or promoted you, it will be harder to prove discrimination.
- Is there any other evidence that this person would discriminate?
How have other people in your group been treated?
- If many others in your protected group have been treated well, and you’re one of the few exceptions, it will be hard to prove that you were discriminated against because of your membership in that group.
- Is there any other evidence of discrimination, such as remarks that you do not fit some stereotype of your group?
How have people in other groups been treated?
- One of the most powerful ways of proving discrimination is to show that someone like you in all important respects, or not as good as you in some respect, was treated more favorably.
- For example, in one case the Supreme Court held that the black plaintiff had a good claim of discriminatory discharge when he was fired for misconduct but three whites who had engaged in the same misconduct were not fired.
- In this kind of situation, an employer will try to claim that any difference between the plaintiff and the white employees—such as the white employees having more seniority, or the black employee having a worse record of earlier problems, or the white employees having better performance evaluations—was an important difference, and explained the difference in treatment.
- That is why it is useful to have a series of examples, involving people as much like you as possible.
Has a new decisionmaker come on the scene, or has an old one left, with a change in how people like you have been treated?
- It can be very hard for an employer to defend sudden changes in employment decisions when a new person takes over, or an old person leaves, unless there is a legitimate reason for the employer to have decided it needed new types of skills, and the change in priorities explains the differences in outcomes.
It is important that you be reasonable.
It is also very important that the dispute be over something important.
It is very important that you can show you met the employer’s legitimate qualifications. There is an exception for qualification requirements that disproportionately disqualify women, or members of minority groups, or older employees, and that are not job-related.
It is very important that you can show you followed the employer’s legitimate procedures for applying for the job in question, or showing your interest in promotions.