Burden of proof
The burden of proof is a procedural rule which has important consequences if an assertion is not proven. Normally, if a person files a legal complaint before a civil or labour court, it is up to her or him to prove the facts corresponding to the alleged claim. If the burden of proof is not met by the complainant, the opposing party does not need to defend the claim.
However, the nature of discrimination cases often makes proof difficult or impossible because the complainant has little or no information on the employer's internal policies and procedures, and the actual rationale may not be revealed.
It is generally national legislation that determines the levels of proof required: that the burden may be heavy (e.g. beyond reasonable doubt) or lighter (e.g. more probable than not). In order to facilitate the legal pursuit of rights for victims of discrimination, a growing number of national legal systems and the supranational European Union have modified this general rule in favour of the complainant: the burden of proof remains, in principle, on the party who claims to be discriminated against, but allegations must be substantiated only to a lower level of probability. If the complainant is able to show some evidence pointing to discrimination (a "prima facie case"), the burden of proof moves to the employer who must either rebut this evidence or produce contrary evidence ("shifting" or "reversing" the burden of proof). The respective provisions are based on the fact that it is usually the employer who is in an advantageous position and in possession of all the documents or other relevant evidence, and that if there is indeed a valid reason for the prejudicial treatment, this should not be difficult to prove.
Shifting or reversing the burden of proof improves the chances for victims of discrimination to win their cases and may therefore be an effective means to combat unequal pay or treatment at the workplace.
→ see also Discrimination
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