How to Prove Discrimination | Lawyer Explains

In this video, I'm going to explain how a victim of workplace discrimination can prove their claim in court. So stick around. Nothing in this video is legal advice. This is a YouTube video and I don't know anything about the specifics of your case. But if you think you were discriminated against and you live in Washington, feel free to reach out to my firm. The link to my website is in the description below. Before we talk about how to prove discrimination, we first need to address what it is that we're going to prove in the first place. So, to succeed on a claim of discrimination, you're going to need to show that your employer took an adverse action against you because of your protected characteristics. To learn more about the elements of discrimination and what you'll need to prove, check out my video on discrimination. I'll put a link to that video up here. To show that your employer took an adverse action against you because of your protected characteristics, we'll need to show a couple of things first. First, that you have a protected characteristic. I talk to workers all the time who tell me they were discriminated against. But when I ask them why they think they were discriminated against, they tell me a reason that has nothing to do with any protected characteristic. Now, protected characteristics include things like your LGBTQ status, your race, your religion, your gender, your nationality, your disability status, just to name a few. I'll put a list of protected characteristics up here. If you do not have a protected characteristic for which you think you were discriminated, then you do not have a claim of discrimination. It's just that simple. Second, you'll need to show that your employer knew about your protected characteristic. And this is sometimes obvious, but not always. For instance, if your protected characteristic is something like your skin color or outward expression of your gender, then your employer automatically knows because anyone who deals with you would know about this protected characteristic. But not all protected characteristics are so obvious. For instance, if you have a mental disability, or you're pregnant, or your protected characteristic is your sexual orientation, these things aren't always so obvious. And if your protected characteristic is not obvious, you'll need to show that you gave notice to your employer. Something like an email or conversation, anything like that will serve as notice. Third, you'll need to show that your employer took an adverse action against you. Adverse actions include things like a demotion, failure to hire, being fired, something that tangibly changes your employment status. But if you're still working and nothing's really happened yet, then you don't yet have a claim of discrimination. And fourth and finally, you're going to have to show that your employer was motivated in taking that adverse action against you by your protected characteristic. And this is where the rubber really meets the road in a discrimination case. It's hard to show that your employer was motivated by your protected characteristic. And this is what we're going to focus on for the rest of this video. How do you prove that? Okay, so now that you know what it is you need to prove, we need to talk about how you can go about proving it. And how do you prove anything generally? With evidence. But what pieces of evidence you will need to prove your case will depend on the circumstances of your case. So before you do anything else, construct a timeline. What happened and when did it happen? This timeline will create a sequence of events and your lawyer will use your timeline for your complaint, your pleadings, and it will even dictate how we present evidence to the jury at trial. So construct a timeline with everything that you can remember. Dates, times, names, anything like that. The next thing you can use to prove your case is called direct evidence. Direct evidence includes things like emails, texts, any written or verbal statements that you have in your possession or that a witness or yourself can testify about. Direct evidence would include something like your employer saying something racist or sexist to you or anything else that could shed light on the employer's motivation to take an adverse action against you because of your protected characteristic. Now direct evidence is pretty rare because employers know not to incriminate themselves. But if you have direct evidence it will certainly help your case. Next is circumstantial evidence. Now circumstantial evidence will make up the bulk of the evidence that we present. And circumstantial evidence is indirect evidence. It's evidence of the circumstances around your adverse employment action that would allow a fact finder like a jury to conclude that there was probably discrimination going on here. Circumstantial evidence would include the following. First, written complaints. While you were working, did you ever make any complaints that you thought you were being discriminated against? These complaints will serve as evidence that you might have been discriminated against. And written complaints are always better than verbal complaints because we have a written record to point to. Next, performance reviews. For instance, if your employer's stated reason for your termination was poor performance, yet you don't have any negative poor performance reviews, or better yet you actually have positive performance reviews, then it's more likely than not that your employer is lying about the stated reason for your termination. Next is discipline history. For example, if your employer's stated reason for terminating you is because you're late, yet when we look at the discipline history of the company it's never terminated anyone else for being late, then it's likely that the employer is lying and that its real reason for terminating you is not for being late. Next is what's called comparator evidence. Comparator evidence is any evidence that your employer treated other employees outside of the protected class differently than it treated you. And if you have comparator evidence, that will help establish your case of discrimination. Finally, any evidence that you can show that your employer was lying. With all the circumstantial evidence that I've talked about so far, we're really showing that the employer is lying about its stated reason for terminating you and that its real reason for terminating you was discriminatory based on your protected characteristics. And in the law, we call that pretext. And if you can show that your employer is lying and that its stated reason is actually pretext for a discriminatory reason, then that will win your case. Juries don't like liars. Okay, so there you have it. Now you know how to prove your case of employment discrimination. In order to prove your case, you'll need to construct a timeline, collect any evidence you have, such as emails, texts, witness statements, and you'll need to rely on circumstantial evidence like performance reviews, discipline history, written complaints you've made to show that your employer is lying about its stated reason for terminating you and that its real reason was discriminatory based on your protected characteristics. Now, if you think you were discriminated against and you live in Washington state, feel free to reach out to my firm. The link to my website is in the description below. And if you found this video helpful, make sure to hit the like button and share this video with other workers. The more we hold employers accountable, the more we protect other workers. Okay, that's all for me this week. See you next time.