Disparate Treatment. Disparate treatment racial discrimination claims involve instances where an employer acts intentionally to discriminate against an individual employee in the terms and conditions of his or her employment.  An employee bringing a disparate treatment lawsuit must show their employer subjected them to a tangible adverse employment action such like termination, failure to hire, suspension, demotion, or a pay cut and that the employee’s race, ethnicity, ancestry or national origin motivated the employers’ action.

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Proving a Disparate Treatment Claim.  An employee’s claim that a particular adverse employment action like a termination was racially motivated can be difficult to prove. Employers who discriminate based on race almost never admit their ugly and illegal racist motives. Instead, they will offer a “pretext.” In other words, they will claim that some other non-racist reason like poor performance by the employee was their true motivation. Because the default rule in New Jersey is that employees work “at will” an employer can advance almost any non-racist reason for the termination no matter how stupid or arbitrary.

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McDonnell Douglas Burden Shifting.  Because disparate treatment claims are often difficult to prove by direct evidence, courts have developed a way for an employee to prove his or her claim with circumstantial evidence. This is usually called the McDonnell Douglas proof model after the Supreme Court case where the model was developed.

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The McDonnell Douglas model has three stages.  First, the employee must make out what’s called a “prima facie” case. Prima facie is simply Latin legalese for “at first look.” A prima facie case of racial discrimination is made out if an employee can show that at first look, his termination or other adverse action was “compatible” with racial discrimination. For example, an African American employee who has been terminated might show that he was discharged and replaced by a White employee with less experience. At the second stage, the burden shifts to the employer who must say what they are claiming was the “true” non-racial motivation for the action.

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The most difficult stage of the McDonnell Douglas test for an employee to get past is the third and final stage. Here, the employee must prove that the employers excuse for their action was a “pretext,” i.e., that the employer is lying about their true motivation for the adverse action. For example, our terminated African American employee might prove that his performance was in fact better than other non-Black employees that were not terminated. The theory goes that if an employee can prove the employer is lying about their true motive, they are probably trying to cover up for an illegal motive.

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This all sounds complicated, and quite frankly it is. To stand the best chance of proving a disparate treatment claim of race discrimination you need a lawyer who has enough experience in employment law to understand and analyze the legal issues at stake, and enough skill and determination at trial to prove the employer is lying. This is not as easy as it sounds.

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We Can Help. The trial team at Lawrence and Gerges can help. We have successfully brought several racial and ethnic discrimination claims for clients of all types of backgrounds and have a proven track record of success. If you or someone close to you has been fired, suspended, demoted, or not hired and you suspect the true motivation was race, we would be happy to discuss the situation with you in a free consultation in one of our Northern New Jersey offices. 

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If we believe you have a strong enough case, we will be willing to represent you on a contingent fee retainer meaning we will not ask you for money up front, and will only get paid if and when we get money for you. (See Silvia’s blog entry, 5 Reasons Why You Shouldn’t Pay a Lawyer in an Employment Case.) 

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