Labor and Employment

What Do I Need to Prove to Win My Employment Discrimination Case?

By Sachi Barreiro, Attorney, University of San Francisco School of Law

To bring a successful employment discrimination case, you must show all of the following:

  • You are a member of a protected class—for example, you are older than 40, you have a disability, or you are a member of a particular race.
  • You were qualified to perform the job (or to receive a certain job benefit).
  • You were subjected to an adverse employment decision by your employer (for example, you were fired, denied a promotion, or disciplined).
  • The job or job benefit was given to someone who is not in the protected class, or you were treated less favorably than employees who are not in the protected class (for example, male employees received a raise while female employees in the same position did not).

Your employer will then have an opportunity to show that it had a legitimate, nondiscriminatory reason for the adverse employment action. To win your case, you must show that your employer’s stated reason was false and merely a cover for discrimination. In technical terms, this is called showing “pretext.”

Example: Phillip, a 50-year-old employee who has held his position for over a decade, is fired and replaced with a 30-year-old employee. Phillip’s employer says that Phillip was fired for poor performance and not because of his age. However, Phillip can show that all of his performance reviews have been above average, that his younger replacement is less qualified than him, and that his supervisor has made comments about the company culture being “outdated and stuffy” and not “hip” enough.

Go to the main employment discrimination FAQ for employees page.

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