Why would you file a suit for discrimination or harassment at work? You’re a peace loving person who just wants to do his or her job, and go home to enjoy the family. Besides, you ask yourself, how can I prove it?

There are three reasons to file a case for discrimination:

1) Your efforts to enter an early dialogue and resolution of your employment grievances have reached an impasse despite your best efforts to be transparent and reasonable;

2) You know the company treated you unfairly in deciding to let you go, and you strongly suspect, even if you cannot put your finger on it, that it was because you were an older worker, or that you took some time off for a serious health condition, or because you weren’t a member of the “old boys” club.

3) You have obtained expert legal counsel who informed you of the strengths and weaknesses of your case, giving it to you straight. Your questions about financial costs, and risks of losing were answered forthrightly, and you’re ready to make the investment.

This third reason includes an assessment of just what you have to prove in a discrimination case. The fine point here is this: indirect and circumstantial proof is sufficient. In other words, extracting an admission, or obtaining a private email or memo stating a discriminatory motive in firing someone is not a requirement of the case.

The reason is practical: discrimination is seldom a moment of pride for an employer. The manager who makes the discriminatory decision is likely unaware of his or her own bias, or is very hesitant to admit it to himself or anyone else. The sparsity of direct evidence means that many real cases of discrimination would never be presented or proven, and therefore discrimination at work would go unchecked.

As a result, the courts have designed the following basic elements of a discrimination case: a) that you are in a “protected” category; b) that you were performing your work satisfactorily; c) that there was remaining work for you to perform; d) that someone outside your “protected category” assumed your job responsibilities, and d) that you have suffered financial and/or emotional injury as a result.

It’s that simple, and that incomplete. The burden of proof has been met, but the employer may overcome that proof with evidence of its own that the reason for termination was business necessity. That burden is fairly easy to meet.

The game-changer in the trial of a discrimination case is to prove that the reason is not only a lie, but likely a lie intended to cover-up a discriminatory motive. Are we back where we started with a requirement of direct proof? No. Only some additional corroborative evidence of discrimination is needed. For example, a manager may have made an off-handed comment that “Bob, you seem to be slowing down. When will you be retiring?” or maybe there is an email that refers to the need to recruit new youthful energy into the organization. These are not “direct” statements, but they are relevant to the question of discrimination, and courts have so held.

To conclude, you would file a lawsuit if your employer is stubborn in refusing to settle despite the uncertainty of “circumstantial proof” you or your attorney presents informally in an effort to reach an early settlement. As the case progresses, witnesses are interrogated, and documents collected, the employer may awaken to the risk of a significant verdict it could have avoided early in the process by listening to reason.

“If the pink slip doesn’t fit, get redressed!”
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