Under current law, there are two ways a plaintiff may prove her discrimination claim: the “direct” and “indirect” methods of proof. Under the direct method, a plaintiff must provide either direct or circumstantial evidence that the employer had a discriminatory motivation.
Under the indirect method, the plaintiff must complete four tasks. First, she must establish she is a member of a protected class (gender, age, race, etc.). Second, she must prove she met the employer’s legitimate job expectations.
The third requirement is the employee suffered an adverse employment action (failure to be hired, not promoted, terminated, etc.). The fourth, and last, requirement is similarly situated employees outside of the class were treated more favorably.
If the employee makes these showings, the burden shifts to the employer to establish to introduce a legitimate, nondiscriminatory reason for its decision. If the employer succeeds, the burden shifts back to the employee to provide evidence the employer’s stated reason was pretextual.
Consider these facts: A Hispanic female employee worked for her employer for four years as a store manager. On her shift, she deeply discounted merchandise, and then sold it to herself for next to nothing. She was fired for this act, which did violate her employer’s policies.
However, the evidence showed a non-Hispanic employee had committed a similar violation a couple of months before and merely received a warning. Additionally, during this time period, the female employee’s supervisor had made several anti-Hispanic jokes and comments.
The court held under either the traditional indirect test, or under the new proposed one-step test, the plaintiff was entitled to take the case to a jury.
The court found a jury could find that the employee’s wrongdoing, for which she was fired, was comparable to the wrongdoing of her non-Hispanic male co-worker, and that further the supervisor’s animus against women and Hispanics tainted the decision to fire her.