Employment Discrimination

Michael K. McFadden

How does a jury decide if the employer's firing was based on employment discrimination?

Examining what the judge will tell the jury is a good place to help you understand the primary facts that are evaluated in determining if you have a winning case.

In an employment discrimination case, the court generally determines if a plaintiff has met its initial burden.  For example,  in a wrongful termination case this would be that you are a member of the protected class, that you were performing your job, and you were subject to an adverse employment action.  Generally the employer then sets forth the reason it asserts for the discharge and the plaintiff then has to provide evidence that the reason proffered by the employer was a “pretext” and that the true reason for the adverse employment decision was unlawful discrimination.   If this issue is disputed by genuine factual evidence then the jury decides this issue. 

The general instruction that the judge would give to the jury would be that as jurors you may find that the employer  had more than one reason or motivation for its actions. For example, you may find that the defendant was motivated both by the plaintiff’s protected class, and by other, non discriminatory factors, such as the plaintiff 's  job performance.  To prevail, the plaintiff is not required to prove that his or her age was the only reason or motivation for the defendant’s actions. Rather, the plaintiff must only prove that his or protected class played a role in the decision and that it made an actual difference in the defendant’s decision. If you find that the plaintiff’s protected class did make an actual difference in the employer's decision, then you must enter judgment for the plaintiff.  If however, you find that the defendant would have made the same decision regardless of the plaintiff’s protected class, then you must enter judgment for the employer.