Sxb the burden of Proof is on the employer and not the employee. The employee has to establish Prima farcie of Employment discrimination.
Employee's prima facie case #16
by Ross Runkel at LawMemo
A "prima facie case" is what an employee has to prove in a discrimination case in order to require an employer to explain itself in court. It's that minimum set of facts that a plaintiff has to include in a court complaint and be prepared to actually prove.
Because we're talking about minimums, I better make it clear that an employee better have more than this minimum if she actually expects to win a case.
I'll talk about three basic ways to make out a prima facie case.
First is when the employer has a "facial" policy of unlawful discrimination. For example, the employer has stated a policy that it will hire only females to be food servers. This is an extremely rare situation because employers rarely say such things out loud.
Second is where there is "direct evidence" or what you might call a smoking gun. For example, the employer says to an applicant "I'm not going to hire you because you're not white." Again, this is rare, but sometimes it happens. It's amazing how often an employee can prove that an employer said something like "Let's get rid of all the old employees" or "We've already hired one Mexican and that's enough."
Third, is "circumstantial evidence." Tons of cases fall into this category, and things can get a bit complicated.
The US Supreme Court had a famous case in which a man claimed he wasn't hired because he was black. The Court said this is what he had to show:
He was a member of a protected class (in this case, he was black).
He applied for the job, and the job was open.
He had the minimum qualifications for the job.
He was not hired.
The job remained open, or a person of another race was hired for it.
That framework became the model for all other circumstantial evidence discrimination claims: race, sex, religion, national origin, age, disability, whatever.
It also became the framework for cases involving not just failure to hire, but also discharge, demotion, transfer, suspension, and so on.
Of course, for each specific case the four parts of the proof might need to be adjusted to fit the different situation. For example, in a discharge case, the employee might have to prove that she was meeting the employer's reasonable expectations. In a case claiming discharge because of age, the employee might have to prove that someone significantly younger was kept on the job.
Notice that the Supreme Court made it pretty easy for a plaintiff to make out a prima facie case. But that doesn't necessarily mean the employee will win. It really means only that the employer must now put on some evidence that she was fired (or not hired, etc.) for a "legitimate non-discriminatory reason." (If the employer simply has no such evidence, then the employee wins, but that practically never happens.)
