Proving Employment Discrimination

Proving employment discrimination is no easy task. Over time, courts have developed an analytical method for evaluating such claims.

Proving Employment Discrimination With “Indirect” or “Circumstantial” Evidence

When a plaintiff alleges employment discrimination based on indirect, or circumstantial, evidence, courts employ the “burden-shifting” framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).^[1]See, e.g., Tu Ying Chen v. Suffolk County Community College, 2017 WL 2116701 (EDNY March 31, 2017); Colon v. SABIC Innovative Plastics, 2017 WL 3503681 (NDNY 15-cv-651 Aug. 15, 2017). While courts also apply this framework to “retaliation” claims, here I’ll focus on its applicability to so-called “status-based discrimination” claims.

This framework breaks down into three basic steps: (1) prima facie case, (2) legitimate, non-discriminatory reason, (3) pretext.

Here is one court’s summary:

[A] plaintiff must establish a prima facie case of discrimination by demonstrating (i) membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment action; and (iv) circumstances surrounding that action giving rise to an inference of discrimination. … At this initial stage, plaintiff’s burden of establishing a prima facie case is not onerous, and has been frequently described as minimal. …

After plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. …

If the employer meets that burden, [t]he burden then shifts back to the plaintiff to show that [the employer’s] stated reason for the adverse employment action was in fact pretext.^[2]Pineda v. Byrne Dairy, Inc., 212 F.Supp.3d 467 (SDNY Aug. 31, 2016); see also Falcon v. City University of New York, 2017 WL 2982980 (EDNY July 10, 2017); Augustus v. AHRC Nassau, 976 F.Supp.2d 375 (EDNY Oct. 4, 2013).

The McDonnell-Douglas framework is “not a rigid ritual”, but rather “an orderly way to evaluate proof when discrimination is claimed … [such that] the Court’s ultimate task as the finder of fact, notwithstanding [the] burden shifting, is determining discrimination vel non, i.e., whether plaintiff has proven by a preponderance of the evidence that the defendant discriminated against [him or] her.”^[3]Augustus v. AHRC Nassau, 976 F.Supp.2d 375 (EDNY Oct. 4, 2013).

Courts have applied this framework to discrimination claims brought under, e.g., Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, 42 U.S.C. 1981, the New York State Human Rights Law, and the New York City Human Rights Law.

Proving Employment Discrimination With “Direct” Evidence

Where a plaintiff offers “direct” evidence, as opposed to “indirect” or “circumstantial” evidence, of discrimination, the McDonnell-Douglas test is generally not used.^[4]See, e.g., Azkour v. Haouzi, 2017 WL 3016942 (SDNY July 17, 2017) (holding that direct evidence of discrimination was sufficient to survive summary judgment).

Courts have held that “[t]o avoid the burden-shifting analysis, the plaintiff must be able to produce a ‘smoking gun’ or at least a ‘thick cloud of smoke’ to support [his] allegations of discriminatory treatment” and “[s]hort of a bare admission, this requires proof of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the [employer’s] alleged discriminatory attitude.”^[5]Giugliano v. FS2 Capital Partners, LLC, 2017 WL 2222924 (EDNY May 18, 2017) (rejecting plaintiff’s claim that he provided direct evidence, and applying McDonnell Douglas).

Regardless of whether a plaintiff’s claims are evaluated under the “McDonnell Douglas” or the “direct evidence” path, every case is different, and must be carefully evaluated by reference to its peculiar facts.