Most people generally understand that state and federal laws prohibit discrimination in the workplace against persons who are members of protected classes (e.g. age, race, gender, disability, etc.). That is, you cannot be treated differently than others who are not in your protected class or harassed and demeaned because of your class status. If you are, you can bring a legal claim to cease the discrimination and obtain compensation for what you endured. But what is actually required to prove a claim of discrimination? While the elements of proof may differ depending on the factual circumstances, the following provides the basic guidelines:

Direct Evidence

It is rare, but you may have direct evidence of your employer’s discriminatory intent. Direct evidence typically is in the form of oral or written statements that directly attribute the action taken against you to your protected class. Examples are, your boss tells you that you are being terminated because you are too old for the job or the hiring manager tells you that are denied the promotion you sought because you are a woman and ‘this is a man’s job.’ If you have direct evidence, you have a very strong case.

Indirect or Circumstantial Evidence

Employees do not usually have direct evidence of discrimination and so must use indirect or circumstantial evidence to prove a discrimination claim. In this situation, you must generally show the following:

1) You are a member of a protected class

Legally protected classes include: gender, race, age, national origin, pregnancy, religion, sexual orientation, disability, and military status.

2) You performed your job at least satisfactorily and/or are qualified to perform the job

You received positive job evaluations, were not disciplined (or not legitimately so), and generally performed your job duties in at least a satisfactorily manner. You do not have to be a star employee but you must be performing at a reasonably good level. If your employer has created a paper trail of performance deficiencies it may argue that you are not performing satisfactorily or qualified to perform your job.

3) You suffered an ‘adverse job action’

An ‘adverse job action’ or ‘adverse employment action’ is an action your employer takes against you that affects the ‘terms, conditions or privileges’ of your employment. Common adverse job actions include reduction in wages or hours, unequal pay, denial of a promotion, demotion, job reassignment, and termination. Harassment can rise to the level of an adverse job action called a hostile work environment. One incident of harassment is not usually enough. You must experience severe and pervasive harassment, that is, many incidents over a continuing period of time. How many incidents you must endure, for how long and how drastic of an effect those incidents must have on your work environment is determined on a case by case basis.

4) You suffered the adverse action because of your protected class.

It is important to understand that just because you are a member of a protected class and sustain an adverse job action does not mean that you have a discrimination claim. The reason for the differing treatment or harassment you are experiencing is crucial. In simple terms, you must show that your employer (or its employees or supervisors) has a discriminatory bias toward you and it is that discriminatory bias or intent that is the reason for the adverse action. Did the offender make repeated disparaging remarks about your race, national origin, or gender? Were you told you are not ‘up with the times’ and turned down for a promotion to find out the job was given to someone 20 years your junior? Were you a star employee until you became pregnant and took a maternity leave and now cannot do anything right? These situations tend to show a discriminatory intent. On the other hand, if you have an equal opportunity bully for a supervisor you are not likely to have a successful claim no matter how mean or demeaning the treatment.

5) The Burden Shifting Stage

Once you have established the above, you have established what the law calls your prima facie case. The burden then shifts to your employer to provide a non-discriminatory explanation for its (or its employees and supervisors) conduct. All your employer needs to show is that there is some legitimate basis for the action taken against you. If your employer meets this showing, the burden shifts back to you to prove that the stated, non-discriminatory reason is a pretext and that the real reason is discrimination.

These are the basics. Determining the reasons for the differing treatment you are experiencing and whether it constitutes unlawful discrimination requires extensive knowledge of the laws and a detailed analysis of your particular situation. If you have questions about your work environment and how you are being treated you should contact an experienced Boston discrimination attorney. Contact Swartz Law online or by calling (617) 871-1500.