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Employment Discrimination: What Evidence Could Help Prove Discrimination in the Workplace?

Employment Discrimination: What Evidence Could Help Prove Discrimination in the Workplace?

Unfortunately, workplace discrimination is common, but employees have legal protections against it and can take steps to prove it is happening.

Proving discrimination is necessary for holding employers accountable and getting relief after someone violates your rights.

Let’s review the evidence and steps for proving employment discrimination, including essential information on gathering evidence, protected classes, filing EEOC claims, elements to establish cases, legal help, and potential remedies.

What is Direct vs. Circumstantial Evidence of Discrimination

You may apply two categories of evidence to prove employment discrimination: direct evidence and circumstantial (indirect) evidence. Employee rights attorneys rely on both types to build strong cases.

Direct Evidence

Without inference or presumption, direct evidence of discrimination proves that bias against a protected class was a motivating factor in the adverse employment action.

It includes discriminatory statements, policies that explicitly treat employees differently based on protected class status, or admissions that the adverse action was motivated by discrimination.

  • EXAMPLE: If a supervisor stated that they were demoting an employee because she was pregnant, that would constitute direct evidence of pregnancy discrimination. Workplace discrimination attorneys always look for these smoking gun statements or admissions.

Indirect Evidence

Circumstantial evidence requires some inference to conclude that unlawful discrimination occurred.

This assumption could include suspicious timing, comparator evidence, documentation of performance, etc., that allows the fact-finder to reasonably infer it is more likely than not that discrimination occurred.

  • EXAMPLE: If a boss fires a female employee shortly after informing him that she was pregnant despite no prior performance issues, that timeline would be circumstantial evidence of pregnancy discrimination.

Plaintiffs can use both types of evidence to meet their burden of proof. And while direct evidence provides smoking gun proof, circumstantial evidence can also be quite compelling when presented effectively.

Gathering Evidence of Discrimination

To build a robust case, diligently gather all evidence of potential discrimination. Noteworthy evidence employees should collect includes:

  • Copies, photos, recordings of discriminatory statements, remarks, jokes, emails, flyers, etc., that reference protected class status
  • Descriptions of discriminatory incidents, noting dates, times, locations, and names of perpetrators and witnesses
  • Comparator evidence records showing supervisors treated employees outside the protected class more favorably
  • Witness statements corroborating incidents
  • Documentation of satisfactory performance reviews, achievements, etc., contradicting the employer’s stated rationale
  • Timeline of events showing, e.g., discipline/firing occurred shortly after complaint
  • Copies of personnel files, including performance reviews, discipline records, and any internal discrimination complaints filed

Having extensive documentation makes investigating, filing, and proving discrimination claims much easier for your discrimination attorney.

Overview of Federally Protected Classes

Federal law prohibits workplace discrimination based on protected class status.

Protected classes include:

  • Race
  • Color
  • Religion
  • National Origin
  • Sex
  • Pregnancy
  • Age (40+)
  • Disability
  • Genetic Information

California Department of Fair Employment and Housing rules and local laws also prohibit discrimination based on these and other characteristics like sexual orientation.

When gathering evidence, employees should document any incidents related to their membership in these protected classes. The more evidence tying adverse actions to protected class status, the more likely an employee can prove the claim.

Filing an EEOC Discrimination Claim

Before filing a private lawsuit, employees must first file discrimination charges with the US Equal Employment Opportunity Commission (EEOC) or equivalent state agency.

This filing starts the official investigation into the allegations. The EEOC reviews evidence and documents, conducts witness interviews, and decides regarding reasonable cause.

In California, employees must file the EEOC charge within 300 days of the alleged discriminatory act. This process is required before obtaining permission via a Notice-of-Right-to Sue and proceeding with formal litigation.

Evidence and Elements Needed to Prove Discrimination

Under federal law, plaintiffs must satisfy a multi-step burden-shifting framework to prevail in employment discrimination cases. This framework stems from MCDONNELL DOUGLAS v. GREEN, a US Supreme Court case decided in 1973.

Below are the necessary elements that claimants must prove, though the specifics vary slightly for different protected class claims:

Establishing a Prima Facie Case

As an initial matter, plaintiffs must establish a prima facie (Latin for “on its face”) case by showing:

  • Membership in a protected class
  • Subjection to adverse employment action
  • Qualification holdings or satisfactory performance in the position
  • Less favorable treatment than similarly situated employee(s) outside the protected class

Establishing these elements creates a presumption of discrimination. The burden then shifts to employers to articulate legitimate, non-discriminatory reasons for their actions.


If employers can point to some colorable reason like poor performance, misconduct, etc., the burden shifts back to employee(s) to show the stated reason is merely a pretext, meaning it is a false cover for unlawful bias.

Powerful evidence exposing bogus rationales includes:

  • Documentation of solid performance
  • Higher standards are imposed only on those in a protected class
  • Better treatment of comparable employees outside the protected class
  • Sudden discipline after positive reviews
  • Inconsistencies in employer’s messaging

Such evidence proves that discrimination was the real motive behind an adverse employment action, which allows employees to prevail.

Hiring a Workplace Discrimination Attorney

Employment discrimination cases present many complex legal issues. Retaining an experienced employment law attorney is essential for making the strongest arguments and navigating litigation.

Legal counsel can help employees by:

  • Demanding personnel files and other documentation
  • Interviewing witnesses
  • Assessing merits of legal claims
  • Filing EEOC charges
  • Negotiating resolution pre-litigation if appropriate
  • Navigating burdens of proof in litigation
  • Presenting persuasive arguments and evidence in court
  • Examining witnesses
  • Fighting damaging defense tactics

Having an assertive advocate protects employee rights and vigorously advances employee interests through the legal process.

Steps in a Discrimination Lawsuit

Below is a basic overview of the discrimination litigation timeline from start to finish:

  1. EEOC Charge Filed: Starts official discrimination investigation
  2. Notice of Right to Sue Issued: Permits an employee to file a federal lawsuit within 90 days
  3. Complaint Filed: Lawsuit commences and alleges facts or counts
  4. Discovery: Information exchange and collection stage
  5. Dispositive Motions: Pre-trial motions seeking judgment
  6. Trial: The fact-finder determines if discrimination occurred by applying burdens
  7. Post-Trial Motions: Requests to reconsider verdict
  8. Appeal: Challenge legal conclusions and evidentiary rulings

An experienced discrimination attorney will employ several strategies at each phase to build the most robust case possible. Having guidance when approaching litigation can significantly enhance your prospects of obtaining a favorable outcome.

Potential Remedies in Discrimination Cases

There are various civil remedies that employees can seek after establishing unlawful discrimination occurred.

Potential relief includes:

  • Job reinstatement
  • Back pay plus future lost wages
  • Front pay if reinstatement is not feasible
  • Emotional distress damages
  • Reputational harm compensation
  • Punitive damages in egregious cases
  • Attorney’s fees and litigation costs

Securing adequate compensation requires calculating and proving long-term financial harm stemming from discrimination. Experienced attorneys ensure clients are made whole.

Strategies for Preventing and Addressing Discrimination

Employers should take proactive steps to prevent discrimination in the workplace and respond appropriately to complaints.

Best practices include:

  • Provide regular equal employment opportunity training
  • Hold strong anti-discrimination policies
  • Offer reporting procedures for employees
  • Conduct unbiased investigations into allegations
  • Take swift disciplinary action against perpetrators

Likewise, employees observing discrimination should:

  • Document incidents and preserve evidence
  • Report issues internally if procedures are available
  • Reach out for legal help evaluating the next steps

No one should endure an unlawful hostile work environment or suffer adverse job actions due to protected characteristics. Where discrimination occurs, there are paths toward justice.

Proving discrimination can be challenging but possible with diligent evidence-gathering and determined legal advocacy. Those encountering discrimination should understand their rights and immediately explore options with an attorney.

Talk to an Employment Discrimination Attorney at Malk Law Firm in California

Have you experienced discrimination at work and want to understand your legal options better?

The workplace discrimination attorneys at the Malk Law Firm in Beverly Hills can help. Call us or complete our online inquiry form for a free case review. Our experienced employment law attorneys routinely represent Southern California employees in lawsuits and negotiations related to all forms of discrimination in the workplace.

We will evaluate your situation, answer your questions, and discuss paths forward for seeking maximum relief. Don’t wait to get accountability and the justice you deserve. Contact us today to explore your rights.

Author Bio

Michael Malk is the Founder and Managing Attorney of Malk Law Firm, a Seattle employee rights law firm he started in 2007. With more than 20 years of experience practicing law, he has dedicated his career to representing clients throughout California and Washington in a wide range of legal areas, including unpaid wages, sexual harassment, discrimination, wrongful termination, and other employee rights matters.

Michael received his Juris Doctor from the University of California— Davis School of Law and is a member of the State Bar of California, the State Bar of Washington, and the American Bar Association. He has received numerous accolades for his work, including being named as one of the “Top Attorneys in Southern California” by Los Angeles Magazine in 2018 and being selected as a Super Lawyer for six consecutive years.

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