How to prove discrimination in employment lawsuits.

Proving the textbook discrimination case.

So, you’ve been the victim of employment discrimination in California. You want to bring a discrimination lawsuit against your employer or confront them about it, but you’re not sure how you can prove it. The critical question is whether your employer’s actions were motivated by unlawful reasons. This article gives an overview of what those reasons are and how you can prove your employer’s motivations.

The legal background.

Discrimination law in California is primarily governed by the Fair Employment and Housing Act (FEHA). ((Gov’t Code, §§ 12900—12996.)) There are also federal laws that protect employees, like the Age Discrimination in Employment Act of 1967, ((29 U.S.C. §§ 621634.)) Title VII of the Civil Rights Act of 1964, ((42 U.S.C. §§ 2000e–2000e-17.)) or the Americans with Disabilities Act of 1990. ((42 U.S.C. §§ 12101–12213)) For the most part, however, California law provides more groups with protections against discrimination, better remedies for discrimination victims, allows more evidence to support an employee’s claim, ((See, e.g., Reid v. Google, Inc. (2010) 50 Cal.4th 512 [rejecting, in part, the “stray remarks” doctrine used by federal courts to exclude evidence of employers’ non-decisional statements].)) and it applies to smaller employers than federal law usually does. So most California attorneys stick with FEHA and other state laws in asserting discrimination claims.

When is an act “discrimination”?

Generally, FEHA applies to any employer that has five or more employees. ((Gov’t Code, § 12926, subd. (d).)) It prohibits negative employment action against employees if the action is substantially motivated by the employee’s protected characteristic. ((Gov’t Code, § 12940.)) FEHA also protects employees from being discriminated against for associating with people of a protected characteristic. ((Gov’t Code, § 12926, subd. (o).))

FEHA’s protected characteristics include the employee’s:

Race, national origin, ancestry, color, or genetic information.
Religious creed.
Physical or mental disability.
Medical condition.
Marital status
Sex, gender, gender identity, gender expression, or sexual orientation.
Age.
Or military and veteran status.

In other words, an employer may not take action against an employee if that action is motivated by a characteristic listed above. Negative employment actions include actions like:

Harassment.
Refusing to hire an employee.
Terminating the employee.
Refusing to promote the employee or demoting the employee.
Discriminating against the employee in terms of compensation.
Or denying any other conditions or privileges of employment.

Employers are also required to take all reasonable steps to prevent discrimination or harassment from occurring. ((Gov’t Code, § 12940, subd. (k).))

Elements you need to prove.

The person bringing a lawsuit is required to assert certain specific legal claims to justify to the court that they have a valid lawsuit. So, a victim of discrimination might assert claims like: wrongful termination, discrimination in violation of the Fair Employment and Housing Act, retaliation, or other claims.

These claims are called “causes of action.” They’re a way to summarize for the court the legal right you are asserting and the kinds of facts you will need to prove to win your case.

Every cause of action has certain elements that must be met for a lawsuit to be successful. In your lawsuit, you must state specific facts that, if proven, would meet every element of the causes of action you are asserting.

In discrimination cases, the person bringing the lawsuit must generally prove:

The person they are suing was an employer.
They were an employee or they had applied to become an employee of the employer.
The employer took a negative action against the employee. (E.g., fired them, harassed them, refused to employ them, etc.)
The employer’s negative action was substantially motivated by the employee’s protected characteristic.
The employer’s action harmed the employee. ((Jud. Council of Cal. Civil Jury Instrs., § 1-2500.))

“Substantial motivation” in this context means something more than a mere thought or passing statement. ((Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479.)) The employee’s protected characteristic must have contributed to the employer’s decision to take the negative employment action. ((Mixon v. Fair Employment & Hous. Comm. (1987) 192 Cal.App.3d 1306, 1319.))

The protected characteristic does not, however, have to be the only motivating factor in the employer’s decision to take a negative action against the employee. ((Id.)) For example, an employer could be partially motivated by the employee’s poor performance and partially motivated by the employee’s protected characteristic. The employer in that situation would still be liable for discrimination if the employee’s protected characteristic was a substantial part of the employer’s motivation for the negative action.

Standard of Proof

In any court proceeding, litigants have certain burdens they have to meet in terms of how convincing the evidence must be. This is called the “burden of proof.” In a criminal case, for instance, the prosecutor needs to prove that the defendant is guilty beyond a reasonable doubt. In civil cases, like discrimination claims, the burden of proof is much lower. Employees are only required to show that a preponderance of the evidence supports every element of their claim. ((Mixon v. Fair Employment & Hous. Comm., supra 192 Cal.App.3d at p. 1319.)) This generally means that the employee only needs to prove that their claim is more likely to be true than not true. ((Jud. Council of Cal. Civil Jury Instrs., § 1-200.))

Statute of Limitations

Employees that have been the victim of employment discrimination cannot simply sit on their hands and do nothing. If they wait too long, their claim will expire. Generally, employees have one year to file a claim with the Department of Fair Employment and Housing (DFEH) if they wish to assert rights under the Fair Employment and Housing Act. ((Gov’t Code, § 12960.)) This one-year period begins on the date of the unlawful employment practice.

In many cases, the DFEH will issue a right-to-sue letter. The employee then has one year from the date of the right-to-sue letter to bring a civil lawsuit in court. ((Gov’t Code, § 12965.))

Importantly, however, employees wishing to assert federal claims or other claims may have a different or shorter statute of limitations that applies to their case. So it’s important to speak with a lawyer immediately if you believe your rights may have been violated.

Circumstances that can help prove discrimination.

Evidence to prove discriminationIn most cases, there is no “smoking gun” that an employee can point to proving that the employer was substantially motivated by an unlawful reason. For example, employers rarely make the mistake of putting discriminatory reasons in writing. Usually, they will point to some other reason as a pretext for their otherwise discriminatory actions.

So employees often have to dig up evidence about the surrounding circumstances that would allow a jury to infer that the negative employment action was probably motivated by a discriminatory reason. In doing this, there are generally two legal theories under which employees assert discrimination:

Disparate treatment discrimination, or
Disparate impact discrimination. ((Hazen Paper Co. v. Biggins (1993) 507 U.S. 604.))

Disparate treatment discrimination.

Disparate treatment is the most obvious kind of discrimination. Under this theory, the employer treats an employee worse than other employees because of their protected characteristic (race, gender, age, sexual orientation, etc.). ((Hazen Paper v. Biggins (1993) 507 U.S. 604.)) Under this kind of theory, the focus of the employee’s evidence is on the employer’s motivation for its acts. The employee’s protected characteristic must have actually played a role in the employer’s decision-making process for an employer to be liable under this theory. ((Enlow v. Salem-Keizer Yellow Cab Co. (9th Cir. 2004) 389 F.3d 802.))

Examples of disparate treatment include:

Other people without your protected characteristic and with similar qualifications are treated better than you. ((Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 366.))
You are treated worse than your coworkers even though their circumstances are similar to yours. ((McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510 .))
Your employer inconsistently applies the rules in a way that favors people without your protected characteristic. ((Id.; Wills v. Superior Court (2011) 194 Cal.App.4th 312, 340–341.))
You are qualified for a job or a promotion, but a different person without your protected characteristic received the job or promotion even though they are not more qualified than you.
Circumstances surrounding employment decisions are suspicious and the employer’s explanations don’t make sense.

Disparate impact discrimination.

The disparate impact theory is less directed at the specific employee. Under this kind of theory, the employee will assert that the employer has adopted a policy that has a disproportionately negative effect on a protected group. This kind of policy will usually not be discriminatory on its face, but will have consequences on some protected groups of people more than others. For example, a policy of terminating the highest paid employees in a layoff may have a greater negative impact on older employees than it will for younger employees. This disparate impact may constitute unlawful discrimination on the basis of age. ((Gov’t Code, § 12941.))

Special case: Employees with disabilities.

Employees with disabilities can prove discrimination in a different way. Under FEHA, employers are required to provide disabled employees with a reasonable accommodation to allow the employee to perform their essential job functions, as long as it wouldn’t cause the employer undue hardship. ((Gov’t Code, § 12940, subd. (m); 42 U.S.C. § 12112, subd. (b)(5)(A).)) So, employees with disabilities can show that their employer has discriminated against them simply by showing that their employer has refused to accommodate their disability. To read more about reasonable accommodations, click here.

Getting the evidence.

Now that you know how different circumstances can allow a jury to infer that employment discrimination took place, you’ll need to figure out how to get the evidence to prove that those circumstances occurred. In most cases, there are four categories of evidence that employees can use to prove their case:

Documents.
Testimony.
Admissions.
And written answers under oath that respond to the employee’s questions (called interrogatories).

Some cases also involve expert testimony, physical examinations, and mental examinations. For the purposes of this article, however, we’ll examine just the primary four types of evidence listed above.

Documents.

Obtaining documents to prove discrimination.Employees have a right to access certain documents both before and during a lawsuit. Before a lawsuit, employees can demand copies of certain employment records, including payroll records, ((Labor Code, § 226, subd. (b).)) personnel records, ((Labor Code, § 1198.5, subd. (a).)) or employment contracts. ((Labor Code, § 432.))   ((See our article on requesting employment records by clicking here.)) In some cases, these kinds of documents can help prove discrimination. A negative performance review in an employee’s personnel file, for example, could provide evidence of a discriminatory motivation if the employer didn’t provide any clear reason why they were dissatisfied with the employee’s performance.

Once you’ve filed a lawsuit, your right to access information increases greatly. Within ten days of serving your employer with the lawsuit, you may begin demanding that your employer give you certain types of evidence. ((Code of Civ. Proc., § 2031.020.)) The court system allows you to demand that your employer turn over broad categories of documents to you so you can examine them to help support your case. Conversely, your employer is also entitled to submit requests for documents from you at any time. ((Id.)) If you receive that kind of request, you must respond within thirty days. ((Code of Civ. Proc., § 2031.030.))

Employees may demand that their employer allow them to inspect or copy documents that are in the employer’s possession. ((Code Civ. Proc., § 2031.010.)) The demand must state with “reasonable particularity” the kinds of documents that the employee wishes the employer to produce. ((Code Civ. Proc., § 2031.030.))

The main limit on the employee’s right to access documents is that the employee may only seek evidence if there is a reasonable possibility that it will lead to the discovery of admissible evidence or be helpful in preparing for trial. ((Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal. 3d 161.)) This standard is construed very liberally in favor of disclosure in most cases. So employees have a very broad right to access their employer’s records.

At the same time, employees may not abuse the process. They cannot, for example, make demands for documents if their sole purpose is to harass the employer. Rather, the employee may only seek records if their purpose is to seek evidence that may be admissible at trial. So it’s important for employees to find a balance in the records they seek.

In many cases, the most helpful kind of evidence for an employee’s case comes in the form of e-mails, text messages, or social media records that people may view as more casual. Employers, for instance, may not be so careful in expressing their discriminatory intentions in an informal e-mail to a friend. Usually, employees are permitted to access these kinds of records during a lawsuit.

Employees may also wish to access complaints made to the employer by clients, complaints made about specific supervisors, or even compliments made to the employer about the employee by clients. Other things, like communications between supervisors can also be helpful.

In any lawsuit, different accusations or defenses are likely to be thrown back and forth, so a variety of types of documents could help to prove or disprove certain claims.

Testimony.

Another critical source for proving discrimination is the testimony of you, your coworkers, or even your supervisors. Before trial, litigants will usually want to initiate depositions with different witnesses that may have information they want. A deposition is in out-of-court interview (usually conducted by lawyers) that is transcribed by a court reporter. The interview is conducted under oath and the statements made during the interview are often admissible at trial. ((Code of Civ. Proc., § 2025.010.)) The person to be interviewed can be any person, including people that are not parties to the action. ((Id.))

The person to be deposed (interviewed) is normally given a deposition subpoena that requires them to appear at a specific time and place for their deposition. ((Code of Civ. Proc., §§ CCP §2020.010, subd. (b), 2020.220, subd. (b).)) Employees can normally begin sending deposition notices within 20 days of serving any defendant in the case. ((Code of Civ. Proc., § 2025.210.))

Depositions can help dig up evidence about the circumstances surrounding an employer’s behavior. They can also set the tone of future settlement discussions. Additionally, if you decide you need a person to testify at trial, a deposition can be used to impeach a witness if they contradict their own story.

At trial, an employee can compel witnesses appear and testify honestly about situations they may have information concerning. ((Code of Civ. Proc., §§ 1985, 1987.)) The caveat is that the subpoena must be supported by good cause. ((Code of Civ. Proc., § 1985, subd. (b).)) So the testimony sought must be relevant, admissible under evidentiary rules, and not available elsewhere to the employee.

In some discrimination cases, the testimony of co-workers can help support an employee’s case. For example, the co-workers may have witnessed the negative treatment of the employee. Other co-workers may have been privy to conversations where a supervisor expressed a discriminatory motivation. The circumstances vary, but testimony is certainly a useful tool for employees to prove employment discrimination.

Admissions and answers to questions.

After a lawsuit is filed, employees have a right to obtain answers to a variety of types of questions. The methods of getting these answers are called: (1) interrogatories, and (2) requests for admission. Interrogatories are written questions that the opposing party must respond to under oath. ((Code of Civ. Proc., §§ 2030.010, subd. (a), 2030.250.)) Requests for admission are written requests that require a party to either admit or deny certain facts. ((Code of Civ. Proc., § 2033.010.))

Both of these tools can be used to narrow the scope of what the parties dispute. For example, an employee and employer may both agree that certain situations occurred, but disagree about the motivations behind that situation. Using interrogatories of requests for admission are helpful in determining the exact nature of the disagreement and the proof that will be necessary in the future to resolve that disagreement.

Employees may submit a request for admission or interrogatory any time after ten days after the opposing party has been served. ((Code of Civ. Proc., §§ 2030.020, 2033.020.))

There are two types of interrogatories: (1) form interrogatories, and (2) specially prepared interrogatories. Form interrogatories are documents prepared by the Judicial Council of California that an employee can fill out and send to an employer. Examples of form interrogatories can be found here and here. They are fast and easy to use, and they can also help the employee identify information essential in most cases.

Special interrogatories are questions prepared specifically for your case by either you or your lawyer. They are more directed than form interrogatories because they can be specially crafted to get information specific to your case.

Employees have a right to at least thirty-five special interrogatories and thirty-five requests for admission. ((Code of Civ. Proc., §§ 2030.030, subd. (b), 2033.030.)) If necessary, employees can usually ask more than thirty-five interrogatories without facing any consequences, as long as doing so is justified and a declaration supporting their need for additional interrogatories is included.

In addition to narrowing the scope of the disputed issues, interrogatories and requests for admission can force employers to admit facts that they may otherwise wish to conceal. The legal obligation to answer honestly and under oath can often force employers to disclose information to employees that can help employees prove their discrimination case.

Tip: Keep a written journal of events.

Journal events of discrimination.If you’re anything like me, specific facts and dates can be hard to remember precisely. If you feel there is a possibility that you’ve been the victim of discrimination, it’s a good idea to have your version of the story straight. You can do this by keeping a daily journal of the events that happen.

In this journal, you will want to record:

The date of the event.
The person responsible for the event.
Any witnesses to the event.
And a detailed description of the event.

That way, when you’re trying to prove your lawsuit later, you will have a document to refresh your memory. This will help you in confronting your employer with specific events and it will provide a fact-finder with a more comprehensive and chronological view of the actions of your employer. Your lawyer will also appreciate it because they will have more facts to pursue during litigation.

Warning: Do not record private conversations.

In California, it is a crime to record a private conversation. ((Penal Code, § 632.)) A conversation is private for these purposes if the circumstances of the conversation suggest that the parties to the communication intended the communications to be limited to each other. Evidence obtained as a result of an illegal recording is generally not admissible in court. So, it is usually a bad idea to record private conversations to help you gather evidence.

Final thoughts.

California employees have a right to be free from many types of employment discrimination. Discrimination lawsuits, however, can be complex and sometimes difficult to prove. Fortunately, a variety of circumstances can help support an employee’s story, including the fact that they were treated differently than other similarly situated employees. To prove this, employees can gather documents, seek testimony, and demand written responses from their employers during a lawsuit.

There are also other methods not explained in this article, like expert testimony, mental examinations, or physical examinations. In fact, whole books have been written on the topic of evidence, but this article hopefully gave you a good overview of what you’ll need in proving discrimination.

In proving a discrimination claim, it is almost never a good idea to do it yourself. Filing and fighting a lawsuit on your own can be very difficult and confusing. Lawyers often get calls from employees that tried to begin a lawsuit themselves, but quickly got frustrated and needed the help of an experienced lawyer. A lot of times, avoidable mistakes made due to inexperience can be costly and can damage the employee’s case. Additionally, attorney fees are often borne by employers in discrimination lawsuits, which means that employees don’t save any money by not hiring an attorney right away.

Employment lawyers, like Optimum Employment Lawyers, can often be hired on a contingent fee basis, so employees don’t have to bear any of the upfront attorney fees. If you’re interested in speaking with a lawyer to get a free analysis of your case, give Optimum Employment Lawyers a call at (949) 954-8181.

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