Introduction to
Federal
Employment Discrimination Law
How a plaintiff proves his case
The plaintiff has the burden of proving that she
has been a victim of discrimination by a preponderance of the evidence. A preponderance of
the evidence means that it is more likely than not. Stated another way, if the jury thinks
that it is 51% likely that the plaintiff was a victim of discrimination, then the
plaintiff wins. If the jury thinks it is 50% to 50% for each side, then the plaintiff
loses.
The method by which the plaintiff tries to prove
her case depends upon the type of case she filed -- whether the case is a "disparate
treatment" case, a "disparate impact" case or a case involving a denial of
a "substantive right." While these terms sound strange, their meanings are
really straightforward.
Explanation of "disparate
treatment"
Let's assume that the biggest employer in town
has refused to hire a job applicant because she is a woman. That is an example of
"disparate treatment" discrimination. It means the intention to discriminate
against a particular person because of his or her membership in a protected class (age,
race, gender, etc.).
A "protected class" is any identifiable
group of persons who are protected by anti-discrimination laws. For example, persons age
forty or over are the class that is protected by the federal age discrimination laws. A
person who is thirty-nine years old is not a member of the protected class.
Explanation of "disparate
impact"
Now let's assume the employer requires all job
applicants to take a standardized test before someone is hired -- and then only hires the
best people without regard to age, race, gender, etc. But let's also assume that a
statistical analysis would show that white applicants score higher than black applicants
-- and therefore are much more likely to be hired. Therefore, while there was no
intention
to treat African-American applicants unfairly, the impact of the hiring practices
still results in discrimination. Hence, the term "disparate impact."
Explanation of denial of
"substantive right"
Most employment
discrimination cases revolve around whether the employer treats all employees equally. For
example, is an employer just as willing to hire an African-American woman as it is a white
male.
But in some cases, the
issue is not whether the employer treats all employees equally, but whether it has
provided an employee some right to which he or she is entitled. For example, the Family
and Medical Leave Act grants certain employees the right to take up to 12 weeks of leave.
If an employee has a "serious health condition," then that employee has the
right to medical leave. If the leave is not provided, then the employer violated the
Family and Medical Leave Act. So unlike most situations, the issue is not whether the
employee was treated the same as all other employees. The issue is whether the employer
gave the employee the right to which he or she is entitled.
