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Employment Discrimination Basics

Recently, I’ve received plenty of questions about employment discrimination cases. I suppose that this makes sense; with the economy still recovering, there are many layoffs and terminations taking place. Some of these terminations are legitimate, layoffs are necessary and someone has to fall at the bottom of the totem pole. Other terminations… well let’s just say that occasionally something stinks.

Employees are rightfully concerned about their employer’s basis for the termination, and employers are right to want to protect their right to make decisions for their business. This entry gives some basics on what employees and employees need to prove in discrimination suits. It’s most important to think about three basic questions:

1) Can the Plaintiff establish a minimum threshold case? If yes, go to question #2
2) Can the Defendant establish a non-discriminatory reason for the termination? If yes, go to question #3, if no, the Plaintiff is going to win this case.
3) Can the Plaintiff establish that this non-discriminatory reason offered by the Defendant is not in-fact the real reason for this termination. If yes, the Plaintiff is going to win this case. If no, the Defendant is going to win this case.

First things first, the Plaintiff must establish that minimum threshold case; this is called a “prima facie” case for discrimination. Generally speaking, here is what the Plaintiff has to prove for that prima facie measurement: 1) that the plaintiff is a member of a protected class; 2) the plaintiff was qualified or capably completing their work; 3) that an adverse action happened to the Plaintiff such as termination, demotion, failure to get the job, etc; and 4) that the Defendant then filled the position with an individual who is not a member of that protected class.

Now, those four factors get the ball rolling, but that is not all that a Plaintiff has to prove. In the 1970s, in a case called McDonnell-Douglas v. Green, the Supreme Court created a “burden-shifting” formula regarding proof in discrimination cases. Think of it like a tennis match: initially the Plaintiff has to prove a “prima facie” case of discrimination. This proof hits that ball over the net and shifts the burden to the Defendant. The Defendant must then articulate a legitimate non-discriminatory reason for its actions. If they do so, this knocks the ball back over the net to the Plaintiffs. The burden has shifted to them. Finally, in order to hit the ball back to the Defendant for a final time, the Plaintiff must prove that the Defendant’s stated non-discriminatory reason is pretextual; that is, their stated non-discriminatory reason is not actually the real reason.

Of course, proceeding with an actual case is much more complicated than those three questions I listed above, but that should give employers and employees an idea of the framework involved in these cases and what facts might be relevant to discuss with your attorney.

If you have an employment dispute, contact Edward Maginnis at Maginnis Law, PLLC. Maginnis Law is based in Raleigh, and also services Cary, Apex, Morrisville and the rest of the Triangle area. Please contact us at 919-526-0450 or email him at to discuss your employment litigation matters with an experienced attorney.