The Coverup

We live in a time when employers know that treating people differently because of race, sex, national origin, religion, age, and disability is wrong. Because employers know about discrimination laws, rarely can you prove discrimination by getting the employer to admit guilt or by finding the smoking gun email that mentions the discriminatory reason for a bad act. Instead, employers who violate the law will hide their motives carefully behind other excuses, with made up reasons based on performance or maybe a “job elimination” where the job really doesn’t go away, just the employee.

The Supreme Court years ago recognized the problem and provided a base line for proving unlawful discrimination when the employer is not caught red-handed. It’s commonly called the McDonnell Douglas framework, and named for the case that set the rule down in an opinion: McDonnell Douglas v. Green.

Five Steps

Here is the proof needed at trial when the employer does not admit guilt, or you don’t have the smoking gun evidence. It might be easier than you think. The law of the land is that discrimination can be proven in the courtroom in five simple steps:

  1. The employee was in a protected class (black, female, over 40, handicapped, etc.). By the way, we are all in a protected class. Even a white male cannot be discriminated against because he is white or a male.
  2. The employee met the qualifications for the job.
  3. The employee suffered a tangible employment action (fired, demoted, refused a promotion, subjected to a hostile work environment).
  4. The employee was replaced by a person not in the employee’s protected class (a black employee replaced with a white employee, a woman replaced with a man), or other workers similarly situated who are not in the employee’s protected status are not fired, not demoted, are promoted, or not subject to a hostile work environment.
  5. The reason given by the employer is not believable or credible.

Often, when we tell people the story of what happened to someone at work, the response is that the person was discriminated against, but they quickly add, “But you’ll never prove it.” That’s because most people don’t know the basic elements for proof of discrimination.

As an example, if you have been terminated because of your age, the only proof needed is: 1) you were 40 years of age or older; 2) you were qualified for the job; 3) you were terminated; 4) the employer hired a person substantially younger as a replacement or kept substantially younger persons who have similarly situated jobs; and 5) the employer’s reason is not believable.

So, when a 55-year-old employee qualified for his job is replaced with a 35-year-old employee and the employer says that the job was eliminated but the younger employee has assumed the older employee’s responsibilities, that’s enough. Nothing else is needed. The same goes for race, sex, national origin, religion, and disability. Just substitute the protected status of the employee (race, sex, national origin, religion, or disability), who is the replaced with someone outside that status or the employer kept others who have similarly situated jobs who are not in the same protected status.

Common Sense

This formula comes from common sense. It’s based on the logical process of elimination. If the employer knows the real reason but does not give a credible reason or reasons for the bad act, then when the employer’s reasons are eliminated as unworthy of belief, we are left with discrimination being the most likely reason because the qualified person was replaced with someone with a different characteristic and that characteristic should not have played a role in the decision.

Bottom Line: It’s not that hard to prove discrimination.