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Employment discrimination
Hiring and employment
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Attorney directory
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Proofs of Discrimination
Discrimination burden of proof, prima facie case of discrimination, disparate treatment discrimination
Generally laws have well defined components that could readily help
you decide if you were unjustly treated.
However, claims that you have been disriminated against might be trickier
to prove. You might feel it in your heart that there was injustice done
to you. But determining if you have a defensible case is another matter.
Following are some guidelines which could help you get a clearer picture
if your dismissal was due to discrimination.
Claims of discrimination
There are Federal laws that seek to protect employees from discrimination
but you have to fall into certain employment categories to be protected
by that law. Qualifications can differ based the Federal law mentioned
above.
Types of discrimination evidences
Absolute evidence. This type of evidence is the most
excellent way of proving that you were subjected to discrimination. This
could come from directly from the direct pronouncements of your manager
or supervisor that infringes on your rights based on your protection classification.
One discriminatory issue could be your advanced age which management wants
to do away with as they want its image to be known for being young and
dynamic. The evidence can be delivered through verbal communication, letters,
and memos, among others.
Indirect Evidence. Ideal as it may seem, the possibility
of getting an absolute evidence to back up your claim against discrimination
will be very small as employers know only too well the consequence of
directly stating discriminatory statements against an employee. So the
employee is left with the next best thing, gathering indirect or circumstantial
evidence.
The "McDonnell-Douglas Test," has given four questios which
you can ask yourself. If you can answer “yes” to all of the questions,
it will validate your assumption of being discrimnated upon, known as
well as a “prima facie case" prejudicial dismissal.
• Do you already belong to the protected group of employees, such as if
you are filing a case against age discrimination, you should be above
40 years. On the other hand if you are filing for disability discrimination
you should, of course, be disabled.
• Are you competent at your job? If your job calls for a registered nurse,
do you have a nursing licensure to back you up?
• Did your employer do something to affect your career in the company
in a negative way such as dismissal or downgrading?
• Did someone not in the protected category take over your position? Someone
younger, or not physically disabled?
Since you were dismissed despite your suitability for the job and replaced
by an employee without protection in your category, then the law will
take it that you were indeed a victim of a discriminatory dismissal caused
by your being in the protected classification status.
There are no hard and fast rules in using the “circumstantial evidence"
test. It has been changed a lot of times to give it a less mechanical
methodology to battling discrimination cases. If an employee who feels
discriminated against does not have direct proofs of discrimination, then
he/she must at least have substantial circumstancial evidences to back
up his/her claim to help the jury see that the employer really dismissed
the employee without just cause. It is legally acknoweledged that an employee
can still be considered a victim of discrimination even if the vacated
position was not filled up by another person. This can happen when there
is a cutback in manpower.
If you can answer yes to the questions below, you could also use this
in gathering substantial circumstantial evidence to establish the assumption
of discrimination:
• Did they give your case a different treatment than another employee
under the same circumstance but have no protection?
• Did your employer or its management staff always take potshots or disparaging
remarks related to your protected category status or everybody in the
same category as yours about work? Such as “Women will never make a good
construction worker.” Or “Grandma, hurry up with that paper, you’re wasting
precious time here!”
• Is your situation being given a very atypical, severe, unfair treatment
that reeks of discrimination?
• Is your employer a chronically prejudiced person always displaying his
biased decions against employees in the protected class?
• Do you notice employees of your same protected category getting fewer
and fewer?
• Are employees of your protected category getting the brunt of unfair
treatement or relegated to menial jobs.
• Are the other employees in your protected category complaining as well
regarding discriminatory treatment from the same supervisor or manager
that dismissed or demoted you?
• Do you have the data to prove that there is rampant favoritism towards
a group and bias against employees in the protected category?
• Was there a company policy violated by your employer in treating you
the way it did?
• Was a less capable but non-protected employee kept in the same position?
If there are a number of positive answers to the questions above, specifically
the first three questions, you could have a strong case for claiming that
there was a disriminatory dismissal.
Of course, you need more than one piece of evidence to uphold your case.
On the other hand, there is no right number of evidences that will surely
prove that you were discrimated upon.
How to respond to your employer’s rebuttal
After you have gathered enough evidence which can help you build up assumption
of discrimination you have to take into account all the aspects of the
grounds being presented by your company for terminating you. The law requires
the employer to give a reason why such an action was taken against you
and they do not even have to prove it thus eroding the presumption of
discrimination which you have so painstakingly built. The burden of proving
this otherwise is on the employee who is once again tasked with presenting
another set of evidence.
Once the employer fails to give a valid reason for your dismissal, then
the assumption stays and you have won your case. But this rarely happens.
Bear in mind that the employer can have all sorts of reason and it does
not have to be a good reason aside from the fact that your status is protected.
Employers have been well briefed by their lawyers and have become quite
an expert at this.
Let us take for granted that your employer has stated a reason for your
dismissal, the next thing you have to take into account is your capability
to disprove it and show the jury that they are in fact lying. Try the
following ways:
• Prove that the reason is false
• Convince the jury that this reason is not enough to have caused your
dismissal
• Prove that your being in a protected category is the greatest motivation
to fire you rather than the reason presented
• The employer’s reason is so flawed and inconsistent which makes it a
very poor basis for your dismissal
• Will you be able to produce solid evidence of discrimination whether
circumstantial or direct?
Being able to establish one or more of the above-mentioned matters will
strengthen your case and prove that the reason is one big, fat excuse
for discrimination. The law maintains that you should be able to establish
that the reason is untrue and that the real reason is discrimination and/or
your being in the protected category.
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