How do you prove pretext in an employment discrimination case?Return to FAQ Videos
Proving an unemployment discrimination case can be a challenge. It’s a bit like a ping pong match. In the beginning, the employee, the person who suffers discrimination, has to establish that they are part of a protected characteristic, or race, or gender. Something that qualifies under the law. Then they have to establish that they suffered some type of adverse action. A write up, a discipline, termination. The third prong is to show that other individual employees have been treated better then them who are different races, or different protected characteristic. Once the employee establishes that, that’s their burden of proof, then the ping pong switches to the employer. The employer then gets an opportunity to say ‘I treated you this way, not because of your protected characteristic, but because of the fact you were a bad employee, you’re slow, you can’t do the job well.’ Then, switches back to the employee to say that reason’s not credible. That’s what pretext is. Some of the way you can show pretext, by showing just what I said, that other employees who are in the same job classification are held to a lesser burden, or are treated more favorably.