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A recent decision out of the United States Court of Appeals for the Eleventh Circuit caught my eye. Not because of the facts of the case, which were rather pedestrian (a patrol office filed a race discrimination claim because he was investigated and issued a coaching letter for not turning his body camera on when investigating a fatal traffic accident). Rather, in Jones v. Birmingham, No. 21-12962, 2022 WL 4393344, at *2 (11th Cir. Sept. 23, 2022), the United States Court of Appeals for the Eleventh Circuit made two holding that illustrate two important points of employment discrimination and retaliation claims. Let’s jump into those issues.

How do I prove a discrimination claim?

Best Employment Discrimination Lawyer Answer: Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA”), and Age Discrimination in Employment Act of 1967 (“ADEA”) are federal laws that prohibit employers from discriminating against and employee or applicant based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, age or disability. As our employment discrimination attorneys have frequently discussed in this employee’s rights blog, a discrimination claim is typically proven by using the burden shifting McDonnell Douglas test. This test is named after the United States Supreme Court decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). While the test is designed to be fluid depending on the circumstances, the employee is typically required to first establish (1) the employee belongs to one of the protected classes listed above; (2) the employer took an adverse employment action against the employee; (3) the employee was qualified to perform the job in question; and (4) the employer either replaced the employee with someone outside the protected class or treated ‘similarly situated’ employees outside such class more favorably. (Best Law Read: How Do You Win A Discrimination At Work Lawsuit?; Can Unequal Progressive Discipline Prove Discrimination?; How Do You Prove An Unlawful Failure To Hire Claim?; How Do You Prove Causation In Wrongful Termination Cases?; You Don’t Need All Evidence To Start A Discrimination Case; What Are Examples Of Age Discrimination In The Workplace?).

After that, under the McDonnell Douglas framework, the employer would have to state a legitimate business reason, and if the employee showed that reason is pretext, the employee wins. (Best Law Read: Employment Discrimination Question: What Is Pretext?; How Do I Prove That My Employer Lied About Why I Was Fired?; How Do I Prove Pretext For My Wrongful Termination?).

Many lawyers and a great deal of judges sometimes over-rely on the McDonnell Douglas test, believing it is the only way. That is not the case. As the United States Court of Appeals for the Eleventh Circuit held in Jones, there is another way:

As an alternative to the McDonnell Douglas framework, the plaintiff can present circumstantial evidence that, “viewed in a light most favorable to the plaintiff, presents a convincing mosaic” of discriminatory intent. Id. at 1250 (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). For example, he can point to “(1) suspicious timing, ambiguous statements, or other information from which discriminatory intent may be inferred, (2) ‘systematically better treatment of similarly situated employees,’ “ and (3) evidence that the employer’s justification is a pretext. Id. (quoting Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (11th Cir. 2019)).

Id. at *2. While there is some overlap between these two options, allowing the employee to proceed under either or both methods provide greater flexibility for the employee to pursue discrimination claims.

Why are retaliation claims easier to prove than discrimination claims?

Best Employee’s Rights Attorney Answer: Our regular readers of this employment law blog are well aware that our lawyers frequently emphasize that retaliation claims are much easier to win that discrimination claims. (Best Law Read: How Do I Prove Illegal Retaliation By My Job Under Title VII?; Why Retaliation Is The Easiest Employment Claim; Retaliation Is Still Easier To Prove Than Discrimination). The United States Court of Appeals for the Eleventh Circuit succinctly nails this explanation on the head:

There are two types of hostile work environment claims under Title VII: one based on discrimination, and the other based on retaliation. Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1206–07 (11th Cir. 2021). The tests for these claims differ in at least one important respect. To establish a discrimination-based hostile work environment, a plaintiff must prove that his employer was responsible for “severe or pervasive” harassment based on the plaintiff’s protected characteristic. Adams v. Austal, 754 F.3d 1240, 1249 (11th Cir. 2014). But the standard for a retaliation-based hostile work environment claim simply requires that the employer’s action “might have dissuaded a reasonable worker” from filing a charge of discrimination. Babb, 992 F.3d at 1196 (quoting Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006)).

Id. at *4. Thus, in discrimination claims, it is hard to prove a one-time incident will mee the “severe or pervasive” standard. (Best Law Read: How Do I Prove My Hostile Work Environment Claim?). However, for a retaliation claim, a one-time incident does not need to be severe or pervasive and the only question is “might” the conduct at issue dissuade a reasonable employee from opposing or reporting discrimination.

In this case, Jones asserted that he was in one meeting where the department’s deputy chief, Michael Richards (not the guy who played Kramer obviously), graphically threatened and forbade those present against making any complaints to the EEOC, human resources, or the police chief about discrimination. The United States Court of Appeals for the Eleventh Circuit held that singular incident could not support a discriminatory hostile work environment, but that the District Court erred in applying the same standard to the retaliation claim: “Yet the district court applied only a ‘severe or pervasive’ standard in its hostile work environment analysis, including in its discussion of Richards’s threat. Because the court erred by failing to apply the less onerous ‘might have dissuaded a reasonable worker’ test, we will remand the retaliation-based hostile work environment claim for it to properly address in the first instance.” Id. at *4.

Certainly, directly and graphically threatening employees not to report discrimination very well might dissuade employees from doing what they are expressly forbade from doing.

How do I sue for discrimination and retaliation?

Best Employment Lawyer Answer: If you need a lawyer because I have been wrongfully fired or terminated; or have been discriminated against or harassed based on your race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employee’s rights website is an advertisement. The materials available at the top of this discrimination and retaliation legal page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I file a complaint for race discrimination”, “How do I report a racially hostile work environment,” “My manager discriminates against me because I’m Black” or “I was fired for reporting sexual harassment to HR”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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