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Proving Discrimination

Employment discrimination and wrongful termination (and retaliation) can be proven by either “direct” evidence or the “indirect” evidence.

  • Direct evidence.  The direct evidence usually involves an admission. “You’re too old for this job, we want younger energy” is direct proof. A comment by someone other than the person who committed the discrimination will usually not be direct evidence.  Direct proof cases are easier, but not at all common or necessary.
  • Indirect evidence.  Indirect evidence, or circumstantial evidence, is of equal weight and proves many criminal and civil cases under the law.  The indirect evidence is more common and it takes place in three steps. First, the employee must prove that he is qualified for the promotion (or in a wrongful termination case, the job) and is of a different race, sex, ethnicity, religion, or other protected classification than people who were treated better (i.e. did not get fired, or did get a promotion.) Next, the employer must give another reason for different treatment (poor performance, attendance issues, time card issues, it could be almost anything.) Then, the employee must prove that the employer’s reason(s) was not the real reason.  It is always important to have good performance and attendance, but even more important when you believe you are facing employment discrimination or are afraid of retaliation, particularly wrongful termination, because you might give the employer another reason to fire you.

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