Under federal law, when there is no evidence of direct discrimination, an employee must allege four elements in order to sustain a discrimination claim:

• The employee is a member of a “protected class,” e.g. women, African-Americans, disabled persons, etc.;
• The employee was “qualified” for the position he or she held with the employer;
• The employee suffered an “adverse employment action,” such as being terminated or disciplined; and
• There is evidence that provides “at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

At the initial stage of a lawsuit, the employee does not actually need to prove the adverse action was the result of discrimination. Rather, he or she only needs to present sufficient allegations and supporting evidence that could plausibly support an “inference” of discrimination.

For example, a federal judge in Manhattan recently refused to dismiss a race discrimination lawsuit brought against the New York Federal Reserve Bank after finding the plaintiff met his burden of plausibly claiming that he was “treated less well than other employees outside of his protected classes.” The plaintiff in this case is an African-American. He worked as a technology consultant for the Fed.

The plaintiff alleges that he was the victim of persistent race, color, and national origin discrimination. For example, he said that he was routinely followed at work “by three armed police officers who were stationed at desks surrounding his cubicle.” The plaintiff said that he was the only employee in his group subject to such surveillance. In addition, the plaintiff said his supervisor “told him to display less leadership” during staff meetings, an admonition never given to the Caucasian employees.

Ultimately, the Fed terminated the plaintiff’s employment after he inadvertently brought a personal Taser and a small canister of pepper spray to work in his personal luggage. The plaintiff said he was subject to an illegal arrest after the then-Commissioner of the New York Police Department personally arrived at the scene and ordered his arrest. Although this incident only resulted in a misdemeanor summons, the Fed immediately terminated the plaintiff’s employment.

The plaintiff sued the Fed, the former commissioner, and the NYPD. With respect to the employment discrimination claims against the Fed, the judge presiding over the case held that the plaintiff met his burden of alleging a plausible inference of race discrimination. There was no question that the plaintiff was a member of a protected class, qualified for his former position, and suffered an “adverse” employment action. Based on his complaint, the judge said the plaintiff provided enough support for the inference that his former supervisor “gave preferential treatment” to non-African-American employees to proceed with his discrimination claim.