What’s Required to Prove Discrimination in the Workplace?

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To prove workplace discrimination, you must establish that (i) you are a member of a protected class, (ii) your employer is covered by the law that your claim is based on, and (iii) you suffered either “disparate treatment” or “disparate impact” in a manner that caused you job-related harm. 

Applicable Law

Both Maryland and the federal government have enacted laws against workplace discrimination. Federal workplace discrimination law is based on Title VII of the Civil Rights Act of 1964, while Maryland state workplace discrimination law is based on State Government Article, §20-602.

Types of Discrimination

Discrimination can be classified in two different ways, depending on how it is perpetrated:

  • Disparate treatment: Disparate treatment is direct discrimination, and it is intentional. An example would be requiring all Hispanic employees to undergo criminal background checks but not requiring other employees to do so.
  • Disparate impact: Disparate impact discrimination is unintentional, or at least it appears to be. An example would be minimum height and weight requirements that apply to all employees but result in fewer female applicants qualifying for a job.

Elements of a Discrimination Claim

To win a discrimination claim, you must prove:

    • You are in a protected class: sex, race, national origin, age, disability and, (under Maryland law  only) marital status, genetic information, sexual orientation, and gender identity;
    • You suffered job-related harm (termination, demotion, loss of benefits, etc.);
    • Your employer treated other employees, who did not share your protected characteristics, in a manner more favorably than you; and
    • You were qualified for the job in the first place.

To win a “disparate impact” discrimination claim, you will also have to prove:

    • A disparity in treatment between groups, defined by a protected class; 
    • The disparity was caused by a particular employment practice or policy;
    • The practice or policy is not justified by a business necessity; and
    • The employer could have taken less discriminatory measures that would have met the employer’s needs just as well.

You will also have to prove the amount of your damages, at least to the extent that they can be calculated.


Certain defenses can be raised against a discrimination claim, such as:

  • If the employer is faced with a disparate treatment discrimination claim for firing an employee of a particular nationality, for example, the employer might seek to prove that the employee was fired due to poor performance, not nationality.
  • An employer defending against a disparate impact claim night seek to refute the claimant’s assertion that the allegedly discriminatory practice was not based on business necessity. Requiring job applicants to pass a strength test, for example, might be justified, despite a disparate gender impact, if the level of strength required is necessary to perform job duties.

These defenses don’t always work. One well-known example of a defense that was only partially successful occurred in 1997 when the Hooters restaurant chain paid out $3.75 million to male applicants for server positions, despite its asserted defense of business necessity

Gathering Initial Evidence

Filing your claim will probably have to be preceded by an initial investigation. Some of the evidence that might be gathered includes:

  • Relevant documents such as intra-company communications, employment contracts, and the employee handbook, among other items.
  • Evidence showing disparate treatment between the claimant and co-workers. This evidence might include, for example, witness statements.
  • Evidence that the employer has faced a workplace discrimination claim in the past (such evidence can be particularly effective in negotiations).
  • Documentary evidence of the  damages you suffered – lost earnings, etc.

Filing a Claim with the EEOC or the MCCR

Before you are allowed to file a civil lawsuit, you are required to file an administrative complaint with the relevant state or federal agency. Only after the agency issues a  “Notice of Right to Sue” letter (typically after a full investigation) is it possible to file a discrimination lawsuit.

You can file an administrative complaint with either the  Maryland Commission on Civil Rights (MCCR) or the federal Equal Employment Opportunity Commission (EEOC). These two agencies cooperate with each other, and each will submit your claim to the other as well. The agency investigation can provide you with valuable evidence and information that can be used in a civil lawsuit.

Gathering Evidence for a Civil Lawsuit

One you receive a “Notice of Right to Sue” letter, you can file a formal complaint to initiate a  lawsuit. In fact, you must do so within 90 days of receiving the latter to beat the statute of limitations deadline. Once the lawsuit is filed, you can begin the discovery process to demand evidence from the other party and, sometimes, third parties. If the other party refuses to cooperate, you can seek a court order compelling disclosure of the evidence.

The discovery process can last for weeks or even longer before a trial actually takes place. In the meantime, you can gather evidence that, if weighty enough, might persuade the other side to settle. This is often the primary purpose of filing a civil lawsuit in the first place – not so much to win at trial, but to force a settlement. The discovery process might yield the following evidence:

  • Witnesses testimony: You can question a witness under oath during the discovery process (the other party can question your witness as well). This is known as a deposition.
  • Documents: You can demand evidence from the opposing party such as company emails contain discriminatory comments; documents describing standard company hiring, firing and promotion policies; and other information and evidence.
  • Statistical evidence (in discriminatory impact claims): Statistical evidence might prove, for example, that a certain company policies disadvantaged twice as many women as men. 

You Need to Move Quickly on This

If you are an employee, strict deadlines apply to workplace discrimination claims. If you are an employer against whom such a claim is filed, the sooner you respond, the better your chances for an optimal outcome will be. Either way, call Smithey Law Group at (410) 919-2990 or contact us online. We serve clients in Annapolis, Baltimore, Columbia, Dundalk, Frederick, Germantown, Glen Burnie, Rockville, Silver Spring, and Waldorf.

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Joyce Smithey, a seasoned employment and labor law attorney, has over 22 years of experience representing both employers and employees in Maryland and D.C. Her practice, rooted in a deep understanding of employment law, spans administrative hearings to federal litigation. Joyce's approach is comprehensive, focusing on protecting client interests while ensuring legal compliance. A Harvard graduate, her career began in Fortune 500 companies, transitioning to law after a degree from Boston University School of Law. Joyce's expertise is recognized by numerous awards, including Maryland’s Top 100 Women. At Smithey Law Group LLC, which she founded in 2018, Joyce continues to champion employment rights, drawing on her rich background in law and business.

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