How to Prove Discrimination at Work: An Employment Lawyer’s Perspective

By Charles Joseph, Employment Lawyer

Charles Joseph draws on decades of employment law experience to help you understand what evidence you need to prove workplace discrimination.

As an employment lawyer, I’m often asked how to prove discrimination at work. In some cases, workplace discrimination is blatant and obvious – with a paper trail. But in many other cases, employees only have circumstantial evidence of discrimination. 

Can you win an employment lawsuit with circumstantial evidence? What is circumstantial evidence, and what is the difference between circumstantial evidence and direct evidence?

In my experience as a New York employment lawyer, I’ve won discrimination lawsuits with all kinds of evidence. And most of those cases relied on circumstantial evidence.

Direct Evidence in Discrimination Lawsuits

Do you need hard evidence for an employment lawsuit? Most cases that I have prosecuted did not have hard evidence. 

Sometimes cases have overwhelming evidence. In one case, someone hit “reply all” and wrote about a job applicant, “I don’t think she’s white.” Because the job applicant received the incriminating email, she was able to prove race discrimination in hiring.

Most cases that I have prosecuted did not have hard evidence.

-Charles Joseph, NYC Employment Attorney

In another case, the owner of a company that sold security cameras was caught on his own office security camera threatening my client, an African American woman, with a noose. The owner tried to erase the recording, but a video technician had witnessed the threat and made a copy, which he gave to my client. The video evidence made it clear that the owner broke the law.

In an unpaid overtime class action, the lead client had an envelope with a check in it and a different number written on the outside of the envelope. That case settled quickly in the seven figures.

But what about cases without such clear evidence? In most cases, we have only circumstantial evidence. That’s fine; as the Supreme Court had pointed out, most racist employers aren’t stupid enough to use the n-word openly so discrimination can be proven by the circumstances. 

Circumstantial Evidence in Discrimination Cases

While hard evidence can strengthen your discrimination lawsuit, employment lawyers win cases on circumstantial evidence all the time.

What is considered circumstantial evidence in a discrimination case? Retaliation is a clear circumstantial case that I have seen many times. For instance, you complained about racism at work and suddenly found yourself on a performance improvement plan based on a pretext – something that normally would not result in a PIP. In these cases, a short time between the protected complaint and the negative result strengthens the circumstantial case.

Here’s another example: Say you’re the only woman in your group, and you have equal seniority and reviews similar to male coworkers. Yet your employer chooses only you for the reduction in force – and the company has a major lack of women in leadership roles. 

Other good circumstantial evidence is a supervisor’s past record of treating people like you poorly. I’ve seen cases where companies rarely or never promoted Black workers to management positions, for example. That circumstantial evidence can help your attorney prove that you faced discrimination.

How to Prove Discrimination at Work

When I first interview a potential client, I ask what evidence they have to prove workplace discrimination. Direct evidence like emails, text messages, voice recordings, or anything in writing can make for a solid case. So can video evidence.

Your own testimony is the best evidence.

-Charles Joseph, NYC Employment Attorney

Strong but circumstantial evidence can also help prove discrimination. Take the earlier example about retaliation. Your employer can’t fire you for complaining about discrimination. And it’s best if you reported the discrimination in writing rather than only orally. When I can prove that you complained, I have a much easier time proving that you were wrongfully terminated. 

The main thing I look for when speaking with potential clients is their own belief in their case. I look for people that know, even in their heart, that discrimination played the major role in them getting fired. 

And remember, your own testimony is the best evidence. Juries decide cases on who they believe. If the employer knows that you will come across as credible and likable, they are more likely to settle early. 

Charles Joseph has over two decades of experience in employment law. He is the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $200 million for clients, and the creator of Working Now and Then.

In the NYC area? Contact Charles Joseph for a free consultation on your rights. Outside of New York? Reach out to see if we can help place your case with an employment lawyer in your area.