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How to prove race discrimination

It is illegal for an employer to discriminate against employees because of their race. The first threshold for the employee to show is deliberately low. It is called a prima facie claim. The employee can prove a prima facie claim for race discrimination by showing that: (1) he or she performed her job acceptably; (2) he or she was punished or threatened with termination; and (3) there is evidence that the threatened job action occurred in circumstances that raise an inference of unlawful discrimination. The purpose of the prima facie case is to identify those circumstances where the employer’s actions, if left unexplained, are more likely than not based on race discrimination.

Once the employee meets the prima facie test, the legal burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for its actions. Even assuming arguendo that the employer can present a passable cover story, the analysis does not end there. The employee can still prevail by providing evidence that the reasons given by the employer for its actions were a camouflage, also known as pretext, for discrimination. An employee can show pretext by direct evidence or through circumstantial evidence. Circumstantial evidence of discrimination can be found when when the there are weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s explanation. In that case, a fact-finder can infer that the employer did not really act for the reasons it stated.

Here is one example of a race discrimination case I successfully settled for a client. My African-American client was brought into a job at a Director level. In May, she received a performance review of Outstanding. Then, she complained about an unpleasant racial episode. The company investigated her complaint and decided not to discipline the other employee. Six months later, the client received a written warning about her job performance and was told her job was at risk. I argued that the alleged performance problems were really a pretext for race discrimination and illegal retaliation. It’s not like the client suddenly forgot how to do her job! It took a while, but the case settled for a significant amount.

Pamela A. Smith
Law Office of Pamela A. Smith
233 Needham Street, Suite 540
Newton, MA 02464


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