Standards of Proof for Discrimination and Why It Matters


 Daniel Schwartz 

Earlier this week, my colleague Bradley Harper and I did a post our sister blog site, Employment Law Letter, on a recent Connecticut Appellate Court case discussing the level of proof needed by an employee to win a discrimination case.

If you haven’t read it yet, you can click here. 

The key line in the post is the following:

The Appellate Court held that when an employee sues an employer for violating the CFEPA, the employee must prove only that illegal discrimination was a cause (i.e., a “motivating factor”) rather than the cause (i.e., the “but for” cause), of the adverse employment action taken against the employee.

For employers, it’s easy for this discussion to feel too theoretical.  But there’s a practical side to it as well.  Employers that have to defend claims where the employee need only show that illegal discrimination was a cause versus the cause, need to be able to show that they had a legitimate non-discriminatory reason for the decision.  And beyond that, employers should attempt to show that there’s no way discrimination permeated that decision.

There are a variety of ways to do that, but one simple way? Document the decision at the time with clear, forthright (and truthful) language as to the reasons why.  In that way, there can be little question later on that the decision was made for good reasons.

Of course, not every case or decision is that easy so employers should continue to seek out legal guidance in particular circumstances.

Daniel Schwartz

Dan represents employers in various employment law matters such as employment discrimination, restrictive covenants, human resources, retaliation and whistle blowing, and wage and hour issues. He has extensive trial and litigation experience in both federal and state courts in a variety of areas…

Originally Published At The LexBlog Platform