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Introduction to
Federal Employment Discrimination Law


Proof in disparate treatment cases

Disparate treatment (or intentional discrimination cases) are proved through the use of either direct or indirect evidence. Direct evidence is evidence which proves a fact without inference or presumption. For example, the human resource person says to the applicant, "I think you are the most qualified applicant, but you are just too old."

In the 1970s, the United States Supreme Court recognized that "direct evidence" of discrimination was hard to come by. Therefore, in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court came up with an alternative method of proof which judges use to decide which cases get to go to the jury (and which cases get dismissed before trial). The method of proof is usually referred to as the McDonnell Douglas burden-shifting analysis.

The McDonnell Douglas method involves three steps:

  1. The plaintiff must make out a prima facie case of discrimination. When courts use the phrase prima facie case, they refer to evidence which is facially sufficient to make out a case of discrimination. There are usually four elements needed to establish a prima facie case. The four elements vary slightly depending upon the type of discrimination action. For our purposes, let's assume an employee believes that he was wrongfully terminated because of his age. To establish a prima facie case, the plaintiff must show that:

    1. he is a member of the protected class (for example, a person suing for age discrimination must be at least 40 years old to be a member of the class of persons protected by federal age discrimination laws);

    2. he was qualified for the job and met the employer's legitimate expectations;

    3. he was discharged despite his qualifications and performance; and

    4. following his discharge, he was replaced by someone with comparable qualifications who was substantially younger.


The elements of the prima facie vary depending upon the type of discrimination case involved (age, disability, national origin, pregnancy, race, religion or gender). Also, different courts may state the elements of the prima facie case slightly differently.

  1. If the plaintiff makes out a prima facie case, then the employer has the burden of producing a legitimate, nondiscriminatory reason why the plaintiff was fired.

  2. Once the employer articulates a legitimate, nondiscriminatory reason for firing the plaintiff, then the plaintiff must show that the reason given by the employer is really just a pretext. For example, the employer asserts that the employee was terminated because he was late to work ten times in the last three months. But the plaintiff shows that five other employees (all younger than him) were also late ten times in the last three months and they were not terminated.

If the plaintiff jumps through these hoops, this just means that the case goes to the jury and the jury will decide whether the employer discriminated or not. Remember, the plaintiff is alleging discrimination, the employer is asserting a legitimate reason for its action -- and it is up to the jury (the finder of fact) to decide who is telling the truth.

In fact, it is possible for the employer to be lying about the "legitimate reason" and still have a jury find in favor of the employer. As an example, let's take an age discrimination case where the plaintiff alleges he was not hired for a job because of his age.

Two persons apply for a job at the Acme Corporation. One applicant is 60 years old and the other applicant is 22 years old. The older applicant is actually more qualified, but the younger applicant is hired. The older applicant sues and the employer defends on the basis that the younger applicant was better qualified. The older applicant convinces the jury that the employer's defense is a lie, but the jury also becomes convinced that the younger applicant was hired because he is a nephew of the person at Acme in charge of hiring. Even though the employer was lying and even though this is very unfair to the older applicant, the older applicant was not discriminated against based on his age.

Employment discrimination laws do not prohibit an employer from treating an employee unfairly. The laws just prohibit an employer from treating an employee unfairly based upon the employee's membership in some protected class.

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