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The Different Ways to Show Actionable Discrimination in an Employment Case

To pursue an employment discrimination case in West Virginia, a plaintiff employee must show that “but for” the plaintiff’s status. I had protested the adverse employment decision would not have taken place. This applies to employment discrimination claims based upon age, religion, color, national origin, ancestry, sex, age, blindness, or disability.

A plaintiff employee can most certainly satisfy the “but for” test with direct evidence of discrimination. This can be in the form of a direct verbal statement, text message, e-mail, or other documented statement made by an employer or someone acting on the employer’s behalf. For example, if an employer blatantly shouted that you are fired for being “too old,” then that would be direct evidence of age discrimination.

There is very rarely direct evidence of discrimination in an employment case. Direct evidence is not required, though. A plaintiff employee can show actionable discrimination through circumstantial evidence, which is evidence that would sufficiently link the employer’s decision and the plaintiff employee’s status as a member of a protected class so as to give rise to an inference that the employment decision was based upon an illegal discriminatory criterion.

There are several forms of circumstantial evidence in an employment case, including:

  • Pretext. Pretext means that the employer did not actually act because of its offered explanation, but rather because of a different reason. Stated otherwise, the reason offered by the employer was not the real reason. In West Virginia, if a jury disbelieves the defendant's employer’s explanation for the adverse employment action, then the jury may reasonably conclude that the logical explanation for the action was unlawful discrimination.
  • Unequal or disparate treatment between members of a protected class and others. If members of a non-protected class are treated more favorably than members of a protected class, then such evidence is indicative of discrimination. For example, if all female employees were punished for being ten minutes late for work while all-male employees were not punished when they were also ten minutes late for work, then that would give rise to an inference of gender discrimination.
  • The reason offered by the employer is unworthy of credence or implausible. This is a very fact-intensive way to show discrimination and is often used along with other methods. Examples include when the offered reason is undisputedly false or illogical. If you were terminated for “continued and repeated performance issues” but have a record of outstanding performance reviews, then the employer’s justification could be unworthy of credence.
  • Different justifications at different times. If, at the time of firing, an employer offers one reason for its decision, then later offers a completely different reason for the firing, then that would be circumstantial evidence of unlawful discrimination.
  • Timing. Timing or temporal proximity plays a very important role in employment cases, particularly when an employee engages in protected activity. If an employee notifies her employer that she intends to take FMLA leave one day, and then is terminated the very next day, that would be strong evidence that the employee’s exercise of her rights under the FMLA was the reason for the termination.
  • Replacement of employee with an individual who is a member of a non-protected class. This most commonly occurs in age discrimination cases. If an employee over the age of 40 is replaced by an employee who is “substantially younger,” then that can be used as evidence to show age discrimination. “Substantially younger” is generally considered to be at least a 10-year difference in age.

Every employment case is different. If you believe you have been discriminated against at work, contact The Moore Law Firm to discuss your situation.