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Documentation and Other Effective Ways to Avoid Liability for Discrimination

By Steven E. Bers

As Title VII of the Civil Rights Act of 1964 (the primary federal discrimination law) celebrates its 40th anniversary, the method of proving a discrimination claim has greatly evolved. Virtually gone are the “smoking gun” statements using the “n-word,” advertisements for applicants of a certain sex, or statements that individuals over a certain age aren't qualified to apply for a particular job. Although the world hasn't reached an era of perfection, blatant discriminatory expressions or policies are comparatively infrequent in modern discrimination litigation.

Instead, discriminatory motivation is usually proven by a showing that the employer has acted in a manner that's irregular, inconsistent, or generally contrary to fairness expectations. Absent any direct evidence of discriminatory motive, the employee relies on those factors to develop an inference of discriminatory motive.claim

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