What is the burden of proof for a discrimination case?

In Virginia, the burden of proof for discrimination cases is very high. In order to win a discrimination case in Virginia, plaintiffs must generally prove that the employer intentionally discriminated against them because of a protected class like race, gender, sexual orientation, disability, or age. Plaintiffs also must show that their discrimination was a “motivating factor” in the employer’s decision to take an adverse action, such as terminating or demoting an employee. In an effort to make it easier for plaintiffs to prove discrimination cases, many Virginia courts have adopted the “mixed motive” or “McDonnell Douglas” tests. Under these tests, plaintiffs only need to present enough evidence to show that discrimination was at least one factor in the employer’s decision. This standard allows plaintiffs to establish a prima facie case of discrimination and then shift the burden of proof to the employer to show that their decision was based on a legitimate, non-discriminatory reason. In addition, Virginia employers may not use “adverse impact” as a defense against claims of discrimination. This means that employers cannot claim that their policies are fair or have a neutral impact on all employees, even if they had no intention of discriminating. Under Virginia law, employers must demonstrate that their policies are necessary and job-related in order to successfully defend a discrimination case.

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