Previously, we looked briefly at an ongoing discrimination case against UMD involving several former coaches of female athletics. As we noted last time, the university wants the lawsuit thrown out based on undisputed law and facts, though the coaches have a different account of what occurred than the university.
In any discrimination case, gathering strong evidence of discrimination is critical to building a successful case. The type of evidence needed to succeed in a discrimination claim depends on the theory of discrimination the plaintiff is pursuing, which itself depends on the facts of the case. There is a fundamental difference between cases where an employer was motivated by discriminatory intent and cases where an employer was not motivated by discriminatory intent but nevertheless acted in a way that had an unfair negative impact on members of a protected class. These cases are usually distinguished by the terms disparate treatment and disparate impact.
In cases where an employer was motivated by discriminatory intent—disparate treatment cases—direct evidence of discrimination is extremely rare, since employers almost always attempt to cover up discrimination with legitimate explanations and justifications. Because of this, plaintiffs usually have to rely on circumstantial evidence of discrimination.
Proving disparate treatment requires presenting sufficient evidence to make an initial showing that discrimination occurred, and then overcoming the employer’s inevitable explanations as to why its treatment of the employee was legitimate and non-discriminatory. This might be done by contradicting the reasons offered, by making use of comparative or statistical evidence, or by offering direct evidence of discrimination, when it exists.
Special rules apply to discrimination cases involving mixed motives, patterns or practices of discrimination, and cases where the employer attempts to offer non-discriminatory reasons for adverse treatment discovered after the employer took the adverse action. Sorting out matters of evidence and damages in these cases can be complicated, and requires the advice and guidance of experienced legal counsel.
In our next post, we’ll look briefly at the other general theory of discrimination: disparate impact.