Blog & Video

How Does an Employee Prove Discrimination in the Workplace?

California and federal laws determine the specific actions – or failure to take action – directed at an employee that is considered discrimination. However, the employee has to prove the discrimination within the legal framework to win in court.

The courts allow employment discrimination lawsuits for certain actions or behaviors directed at an employee in the workplace, whether from colleagues, supervisors, managers or the highest executives. Employers should be familiar with the legal grounds for discrimination claims – but know that not all claims hold weight in court. 

Discrimination claims based on age, race, gender, disability, pregnancy, religion, sexual orientation, medical condition, political activities or affiliations, military or veteran status, citizenship status, marital status, HIV/AIDS-positive status, ancestry, genetic information and pumping breast milk at work or for asking for accommodation to do so all are grounds for legal action under California’s Fair Employment and Housing Act (FEHA). Title 7 offers similar if not identical protections on a federal level.

New FEHA protections took effect January 1, 2023 that protect reproductive health decisions  and, effective January 1, 2024, off-duty cannabis use from employment discrimination. In addition, retaliatory actions against an employee who has made discrimination is also an illegal workplace activity.

But the legal system also determines how these claims may be proved in court. The burden of proof is on the plaintiff. Has he or she introduced evidence where a reasonable jury could conclude that the plaintiff’s race, ethnicity, sex, religion, or other protected factor caused the employment termination or other adverse employment action?

An employee claiming workplace discrimination has three legal ways to legally prove this in court:

    • Circumstantial Evidence. This is the most common method used to prove discrimination. It relies on the indirect-burden method held up by the Supreme Court in its 1973 decision in McDonnell Douglas v. Green. The employee must first show that there is evidence sufficient to warrant a trial by meeting these four standards:
      1. The employee is a member of a protected class
      2. The employee met legitimate job performance expectations
      3. The employee suffered an adverse employment action; and
      4. A similar employee outside of the protected class received better treatment in the workplace.

If the employee establishes these things, then it’s up to the employer to shift the burden back to the employee by providing evidence of a legitimate reason for the adverse employment action against the employee. Next, the burden shifts back to the employee to show that the employer’s reason is an excuse for alleged the discriminatory action(s).

    • Direct Evidence. This is based on written documents or emails or statements that prove discrimination without any inferences or presumptions required. In employment discrimination cases, direct evidence is not common because it’s rare that an employer will clearly state an obviously discriminatory reasons when firing an employee, like gender, religion, or sexual preferences.
    • Pattern and Practice. This legal framework is used in class action employment discrimination lawsuits. To be successful, plaintiffs must show evidence that an employer has a continuing pattern of discriminatory decisions.

An employer can’t ignore a claim of workplace discrimination even if the evidence clearly appears flimsy and without legal grounds. Legal expertise is needed to establish a groundwork for defense in court. Contact LawPLA to consult with one of our attorneys specializing in employer’s defense. We protect employers rights in the workplace and in court.


PLEASE NOTE: This is not a representation, warranty, or guarantee of a future result or outcome. Every case is different just like every one of our clients.