Are you a member of a “protected class?” The protected classes are people who are either:
- female, or presenting as something other than a white CIS male
- over the age of 40
- a race other than white
- a religion other than Christian
- a physical or mental disability under certain circumstances
- genetic information or health limitations of a family member
- someone who has complained to their company about activity that is either patently illegal or a danger to public health and safety
- a physical or mental disability
2. Did the person or entity you want to sue deny you either:
- a job or promotion?
- reasonable accommodation for disability?
3. Can you show at least something to indicate that the reason you got denied was due to your membership in the protected class?
If so, then you can show what’s called a “prima facie case.”
Once you show your “prima facia” case, the person or company that denied you gets a chance to explain themselves. Legal people call this the “articulation of a legitimate non-discriminatory justification for the action taken.” I call this the “come up with something defense.” Basically, they have to “come up with something” to explain why they treated you the way they did. They will typically blame you.
Once they “come up with something,” the real work of your lawsuit begins. We have to do two things:
First, we have to show that the reason they gave is “pretext.” There are three ways to show pretext:
- We can prove that the reason they gave is a flat out bald faced lie.
- Alternatively, we can prove that even if what they said is technically true, they didn’t treat other people who did the same thing the same way. This is called “disparate treatment.”
- Alternatively, we must prove that even if what they said is technically true, they “stacked the deck,” meaning they created a policy or procedure which would affect you, and not others who were not in the protected class, differently - essentially weeding the members of the protected class out. This is called “disparate impact.”
Second, we have to show that the “real reason” they took the action they took is because they wanted to discriminate against you on the basis or your membership in the protected class. This is hard. We can’t read people’s minds or necessarily “prove” their intent. We have to look at circumstantial evidence. Typically, we’ll look at things like how a policy affects black people versus white people. How many people have left the company in the last year who are under 40 versus over 40. What a housing authority's budget is and how much money is available to build a wheelchair accessible ramp. Whether the person who fired you knew you had reported them for violating OSHA requirements again.
This is where the facts of your case get specific and you’ll need to talk to a lawyer about what you know, what you can prove, and what it’s going to take to get that proof. It’s those questions that determine the economic viability of your employment discrimination claim. Time deadlines are also very specific, and what you can get for a discrimination claim in terms of money and other relief is set by statute. If you’d like to set up a consultation, give us a call at 865-685-4780.