In practice, employment discrimination litigation involves a burden shifting system: the aggrieved employee must make an initial showing of discrimination called a prima facie case, and the employer can then present evidence to rebut this case or support a number of defenses that are available to it.
In order to prevail, plaintiffs in employment discrimination actions must be aware of these defenses and prepared to address those the employer is likely to raise. The defenses available often depend on the type of discrimination the employee or applicant is alleging:
Nondiscriminatory motive — In cases of alleged intentional discrimination, an employer often tries to show it had a legitimate and nondiscriminatory reason for taking the action it did. For instance, if an employee alleges he or she was fired because of his or her race, the employer may present employment records that show poor performance or frequent absences.
Undue burden — In cases involving an employer’s failure to provide a reasonable accommodation, the employer may show that under its particular circumstances the only possible accommodations would impose an unreasonable financial or functional burden upon it.
Legitimate business purpose — In cases involving employer policies that have a statistically disproportionate adverse impact on a protected group, the employer may show that the policy is work related and has a legitimate business purpose.
Direct threat — In cases involving reasonable accommodation, an employer can attempt to show that allowing an employee or applicant to work under the conditions proposed would pose a significant risk of substantial harm to that person or others.
Taking these defenses into account, it takes more than membership in a protected group and the occurrence of an adverse employment action to win an employment discrimination case.