Who Has the Burden of Proof in an EEO Complaint?

In any EEO complaint, the Federal employee has the burden of proof, although the burden of persuasion can shift. This means that the Federal employee is required to prove their claim of discrimination by presenting witnesses and producing other evidence to support a discrimination claim.

McDonnell-Douglas Test: Did You Meet the Burden of Proof?

Understanding what they must prove can often be difficult and confusing. Generally speaking, the Judge will follow the McDonnell-Douglas test in determining whether or not the claimant has met their burden of proof. This test is named for the famous US Supreme Court decision that laid out the test. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)

The three parts of the McDonnell-Douglas test are this:

  • The complainant bears the burden of production to show a ‘prima facie’ case of discrimination;
  • If the complainant shows a ‘prima facie’ case, the burden of production shifts to the Agency to show that they had a legitimate non-discriminatory reason for the action complained of;
  • If the Agency shows a legitimate non-discriminatory reason for its action, the burden of production shifts back to the complainant to show what is called ‘pretext’.

Burden of Production vs. Burden of Persuasion

It is important to note, however, that in the law there is a large difference between a “burden of production” and a “burden of persuasion”.

  • The burden of production means only that the party must put forth evidence of the particular element.
  • The burden of persuasion, means that the party must persuade the finder-of-fact (in Federal Employee EEO cases, this is the EEOC Administrative Judge) of the correctness of their evidence. In an EEO case, the burden of persuasion always stays with the Complainant (the federal employee).

The burden of production – producing evidence to support a claim, shifts if the other party meets its burden. Think of it as a tennis match – if you serve the ball to the Agency, they can either return the ‘ball’ to you by producing evidence of a legitimate non-discriminatory reason, or they can miss the ‘ball’.

Generally speaking, if the Agency doesn’t return the ‘ball’ you served, you might be able to prevail without any further proof. (This is not always the case however, and you should consult with a Federal Employee EEO attorney to discuss the facts of your particular case)

Request a Consultation to Discuss Your Case

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with federal employee EEOC complaints (or MSPB mixed-case appeals) to discuss the facts and law of your particular case. If you have questions about the burden-shifting process, or any claims about your Federal employee EEO complaint, contact an attorney at the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.