Determinative Factor Proof Pattern

As New Jersey employment lawyers, one of our jobs is to prove discrimination and retaliation. Doing so often can be challenging, since we are trying to show what someone else was thinking when they decided to fire, demote, suspend or take another adverse employment action against you. 

Recognizing this challenge, courts in New Jersey and New York analyze these claims using different proof patterns to help determine whether your employment law rights have been violated.

Judges analyze most discrimination and retaliation cases using the determinative factor proof pattern, which comes from a United State Supreme Court case McDonnell Douglas Corp. v. Green. This test has three stages, which are explained below.

The first step under the determinative factor test is called the prima facie case. It is intended to make sure the facts are consistent with discrimination or retaliation. Typically, the employee has to offer some evidence of four things, namely whether he or she:

1. Belongs to a legally-protected group;
2. Either is qualified for, or actually held, the position at issue;
3. Suffered an adverse employment action, such as a wrongful termination, failure to hire, or demotion; and
4. The circumstances are consistent with discrimination or retaliation. This often is shown based on the fact that you were replaced by someone outside of your protected category.

If you establish a prima facie case, then your employer has to state a legitimate reason for taking the adverse action against you. Although the employer has to offer some evidence to support its explanation, it does not have to prove it is true.

Under the determinative factor test, once the employer has stated its reason for firing you, then you have the burden to prove it is more likely than not that the discriminatory or retaliatory reason made a difference in the company’s decision.

There are many different types of evidence you can use to meet this burden. For instance, you can use direct evidence, meaning evidence directly reflecting the employer’s discriminatory or retaliatory motive. 

You also can use inferences, meaning something that does not directly prove the employer’s motive but makes it seem more likely it is true. For example, you can meet your burden through evidence demonstrating that the employer’s explanation for its action is false. Employment lawyers refer to this as evidence of “pretext,” since you are showing the employer’s explanation is really a pretext (cover up, or excuse) for discrimination or retaliation. 

You can, of course, use a combination of direct evidence and inferences to prove your case.

At the end of the day, the question is whether the judge or jury believes it is more likely than not that an unlawful factor made a difference in the employer's decision to take the adverse employment action against you.

The determinative factor test is not the only way to prove discrimination or retaliation. If you have direct evidence of retaliation, then you also can use the mixed motive proof pattern.

In addition, you might be interested in reading one of the following articles written by attorneys at our employment law firm in New Jersey:

• Judge Finds Employer Failed to Present Legitimate Reason for Failing to Promote Employee
  
• In Finding Federal Law Prohibits Sexual Orientation Discrimination, Supreme Court Makes it Easier to Prove All Forms of Discrimination
• Third Circuit Finds No Evidence of Discrimination Necessary to Prove Discrimination Case
  
• How Do I Prove Employment Discrimination?