The precise definition of employment discrimination may vary from one jurisdiction to the other. In most cases, employment discrimination may be present in the application or promotion process. It may also be a reason for an employee's termination or the reason an employee does not receive comparable compensation. In order to prove employment discrimination within the United States and in many other jurisdictions, the employee must first show that he or she is a member of a protected class and then that the employer actually acted, or failed to act, on the basis of discriminatory motives.
Proving an employment discrimination case can be very difficult because it is often hard to prove that the employer's motivation was discriminatory in nature. An individual has a much harder time proving discrimination than when a group of employees choose to file a lawsuit. A group stands a better chance, as there is often a pattern of discrimination that can be followed.
In most jurisdictions there are specific traits or groups of people that are considered protected classes. These are typically groups that have historically faced discrimination in one form or the other. Examples of protected classes include race, ethnicity, sex, age, disability or sexual preference. As a rule, the first consideration when analyzing a possible employment discrimination case is whether the employee belongs to one or more of the protected classes. If the employee is a member of a protected class, then he or she will need to gather evidence showing that discrimination was at play.
Much of the time, the evidence needed to prove an employment discrimination case is in the hands of the employer. For example, if the alleged discrimination was in the hiring process, then all applications submitted for the position in question need to be reviewed to see if a less-qualified candidate was hired, which may show discrimination. The same concept applies to promotions and job assignments. Records relating to compensation and terminations are also in the hands of the employer. In most jurisdictions, there is a legal process which allows the plaintiff to require the defendant to provide copies of records such as these.
Discovery is the process by which one party to a lawsuit is allowed to ask pretrial questions of the other party or request copies of relevant documents. An employment discrimination case is an excellent example of why the discovery process is so crucial to civil litigation. A plaintiff, in many cases, would be unable to substantiate his or her claim without evidence that is in the hands of the defendant.
In a discrimination case, the employee may be able to obtain copies of records showing that the employer consistently hired or promoted less-qualified employees based on discriminatory criteria. The records may also be able to show that employees from protected classes were systematically overlooked for promotions or raises, or were terminated without cause. Evidence of this nature is required in order to prove an employment discrimination case.