Martindale-Hubbell Peer Rated
Super Lawyers - David H. Ben AsherSuper Lawyers - Jonathan I. Nirenberg
Rabner Baumgart Ben-Asher & Niremberg PC
Bergen County's Top Lawyers 2023

Determinative Factor Proof Pattern

Proving Discrimination Using the Determinative Factor Proof Pattern

Determinative Factor Proof PatternAs 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.

First Stage: Prima Facie Case

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.
Second Stage: Employer Provides a Justification for Its Action

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.

Third Stage: Employee Proves Their Claim

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.

Another Ways to Prove Discrimination: Direct Evidence

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.

Contact Our New Jersey Employment Law Firm
If you have a discrimination or retaliation claim in New York or New Jersey, then Rabner Baumgart Ben-Asher & Nirenberg, P.C. Can help. We welcome you to call us at (201) 777-2250, or to contact us online, to schedule an initial consultation to evaluate your potential legal claims.
Learn More From Our Employment Law Blog

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

Client Reviews
"I worked with Jonathan Nirenberg, ESQ on a sensitive emotional employment matter. Mr. Nirenberg was quick to respond, offered excellent advice, and always followed up with phone calls or emails when needed. My situation was settled out of court within a short period of time with the best possible results for not just me but also for the employer. Highly recommend and would seek his help again if needed..." Linda Busch, PhD
"We've had the pleasure of working with Jonathan on multiple individual and class employment cases. Jonathan is a skilled, dedicated and caring attorney that works diligently to bring justice for his clients. We would recommend Jonathan as a legal resource for any employment cases." Stephan Zouras, LLP
"I felt alone and without a voice, until I hired Jonathan I. Nirenberg of Rabner Baumgart Ben-Asher & Nirenberg, P.C. Mr. Nirenberg represented me in an employment matter. Without his help, I know that I would not have had the extremely successful outcome I had. Jonathan was not only professional, but very empathetic to what happened to me. Jonathan gave me support, and options in relation to a challenging employer/employment situation which was an extremely difficult time in my life..." Shelly Smith