The Question Your HR Team Actually Needs to Ask
You know the employee. The one who’s absolutely convinced they’re being discriminated against because… well, they can’t think of what else it could be.
They didn’t get the promotion. They’re in a protected class. Therefore, discrimination. Case closed, right?
Wrong.
But here’s where employers can make an equally dangerous mistake: deciding that because the employee’s theory is weak, the complaint must be weak too.
“What else could it be?” isn’t evidence of discrimination. But bad reasoning from the employee doesn’t relieve the employer of figuring out what actually happened.
That distinction is where the investigation starts.
When the Employee’s Theory Doesn’t Add Up
Consider an employee with documented mediocre performance, previous critical feedback, and ongoing interpersonal conflicts who doesn’t get a promotion. They immediately file a discrimination complaint claiming their race must be the reason because “what else could it be?”
Maybe it was the performance issues. Maybe it was the feedback they ignored. Maybe it was the interpersonal conflicts.
But the investigation cannot stop there.
Were those performance concerns documented before the promotion decision? Were other employees with similar performance promoted anyway? Were the interpersonal problems evaluated consistently? Did the decision-maker say something that changes the analysis?
A weak opening theory does not answer those questions.
Evidence does.
The Logic Problem Works Both Ways
Here’s what actually matters in evaluating an intentional discrimination claim under Title VII: evidence supporting an inference that the protected characteristic played a role in the employment decision.
You need evidence connecting the protected characteristic to the decision, not simply elimination of alternatives.
Think of it this way: if your car won’t start and you can’t figure out why, does that prove your neighbor sabotaged it? Of course not. Your ignorance about car mechanics doesn’t become evidence of sabotage.
The same principle applies here. According to EEOC guidance, comparative treatment can be important evidence: Were similarly situated employees outside the protected class treated differently? But comparator evidence is not always required. Investigators should examine all of the surrounding facts and circumstances that might support(or undermine)an inference of discrimination, such as comments by the decision maker, the timing of the decision, or departures from normal policy.
Not “I can’t think of why this happened.”
Not simply “it feels like discrimination.”
Evidence.
But employers need to apply that same discipline to their own conclusions. “The employee’s theory doesn’t make sense” isn’t the end of the analysis either.
The Tools You Need Right Now
When an employee comes to you claiming discrimination based primarily on “what else could it be?” reasoning, here are the questions that move the investigation beyond the employee’s initial theory:
The Comparator Question: “Who else was similarly situated, and how were they treated?” Look for people with comparable performance, tenure, conduct, responsibilities, or other circumstances relevant to the decision. Comparator evidence can be powerful, but it is one part of the analysis.
The Evidence Question: “What evidence suggests that your protected characteristic motivated the decision?” This is where the investigation moves beyond correlation and starts examining causation.
The Pattern Question: “Is this a single incident or part of a documented pattern?” One bad performance review does not establish discrimination. Consistently harsher reviews than similarly performing employees outside the protected class? Now we’re talking.
The Self-Awareness Question: “What documented feedback have you received, and how have you responded to it?” People are notoriously bad at assessing their own performance. When someone says, “I have no idea why I didn’t get promoted,” the real question is whether the record supports that perception.
The goal isn’t to prove the employee wrong. It isn’t to prove the employee right. It’s to test the allegation against the evidence.
The Part Where We Remind You This Is Incredibly Technical
Here’s what makes these claims difficult to evaluate: they can involve:
- Implicit bias
- Self-assessment gaps
- Pattern recognition versus stereotyping
- Different evidentiary and burden-of-proof standards depending on the claim
- Pretext analysis, where a seemingly legitimate explanation may be masking discrimination
You know what doesn’t help? Googling “how to respond to discrimination claims” at 11 p.m. when an employee just filed an EEOC complaint.
We represent employers in Texas, Wyoming, Colorado, and North Carolina. And honestly? Even with decades of employment law experience, these claims require careful analysis every single time.
The difference between “this is a weak claim based on faulty reasoning” and “this is a legitimate claim we need to take seriously” can turn on details an HR team may not initially think to ask about.
Did the decision-maker use coded language? Are there meaningful disparities in promotion decisions? Were the performance critiques documented contemporaneously or reverse-engineered after the complaint?
This isn’t something you want to learn through trial and error. The error part is too expensive.
What to Do Right Now
If a current complaint feels illogical but hard to dismiss—or if leadership simply wants to pressure-test investigative reasoning before the next charge arrives—it may be worth taking a closer look at the evidence, the investigation process, and the reasoning behind the conclusion.
Treaty Oak Employers’ Law Group works with employers in Texas, Wyoming, Colorado, and North Carolina on workplace investigations, discrimination claims, and the employment decisions that tend to get complicated fast.