We have represented hundreds of clients who have been the victims of employment discrimination. Over time, we have learned what individuals can do to help prove their claim when their day in court finally comes. We have also learned the many mistakes people make, which prevent them from proving their claim. It cannot be repeated enough: believing you have been the victim of discrimination is one thing; proving it is something else entirely.
If you believe you are experiencing unlawful discrimination on the basis of your race, sex, religion, disability, national origin, age, or other protected category, there are some steps you can take to help prevent it, stop it, or prove it should that become necessary. Below are seven tips we can give to anyone experiencing employment discrimination. This is for informational purposes only, and does not constitute legal advice. However, we are ready and willing to help should you need us. Contact us here.
1. Document it. If something happens that you believe evidences discrimination, document it. This can be something as simple as keeping a written diary or log, noting the date the event happened, any witnesses to the event, and the details as to what happened. For example, if a supervisor used a racial slur in the workplace, make a note of it, including the date and time, where it occurred, the specifics of what was said, the context of it, and anyone else who witnessed it. If a manager made a sexually inappropriate remark, or a derogatory remark about your disability, keep a log of it. Being able to recount specific details of events will make your case much more credible than vague, non-specific complaints.
2. Report it. This is a difficult, but important point. Most companies have a policy prohibiting discrimination and harassment. In many cases, the law requires that an employee report discrimination and try to resolve it internally with the employer, before he or she can bring a legal claim. You may fear that you will suffer retaliation (although the law prohibits it). You may fear that your employer will not listen to you, or will not correct the behavior. Therefore, the idea of blowing the whistle on discrimination is very frightening to many people. Nonetheless, most judges and juries will expect to see some evidence that you at least tried to stop the discrimination before going to court. And oftentimes, your employer actually will take the action necessary to address the wrongful behavior, and prevent you from having to go to court in the first place. As the old saying goes, “an ounce of prevention is worth a pound of cure.”
3. Investigate it. Do you have a gut feeling that you were denied a promotion based on your race or your sex? Your “gut feeling” is not enough, unfortunately. You need to find out more details. Do what you can legally (and without violating company policy) to investigate your suspicions. Find out who received the promotion, and what their race or sex was. Ask around to find out whether that person was qualified for the job. Keep your ear to the ground to find out if the decision-maker has ever expressed any bias. In other words, find out more information, keeping your mind on the fact that ultimately, you have to prove discrimination in order to recover legal damages.
4. Identify witnesses. The hardest cases to win are “he said/she said” cases. So, if there are others who can corroborate your claim, and who you believe are sympathetic to your cause, make a note of it. Consider reaching out to the individual to ask if they might be willing to put in writing what they witnessed. For example, if your manager has made disparaging remarks about your age, your disability, or your religion, find out if anyone else has heard him make those types of remarks. Email is often a useful tool. Ask someone, via email, what they witnessed. If they respond, stating in the email what they saw or heard, save that email. Print it out for your records. This could one day be important to proving your claim.
5. Don’t give your employer a valid reason to fire you. Oftentimes, we interview people who “gave up” at work due to their experience with discrimination. The employee may have become bitter or resentful of their prejudiced manager, and stopped doing what he or she said at work, therefore causing themselves to be disciplined or fired for insubordination. The employee may have begun to feel helpless, and stopped giving their work their best effort, resulting in negative performance reviews and ultimate termination. This is a big mistake. If your employer has a valid, non-discriminatory reason to fire you, it will severely undermine your claim. Continue to do your job to the best of your ability. Adhere to all workplace rules. Don’t ruin your case by giving your employer a valid reason to fire you.
6. Document your damages. Most of the employment discrimination laws allow you to recover both economic and non-economic damages. Economic damages are all monies lost as a result of the discrimination. So, keep good records of the amount of pay you make, the value of any fringe benefits (i.e. retirement plans, stock options), the amount of money you could make in the future if you received promotions, etc. If your experience has caused medical conditions–such as clinical depression, high blood pressure, insomnia, etc.–get treatment. Inform your medical provider of the cause for the condition, so that it can be documented. Get copies of your medical records. Proving your damages will be an important factor in settling or litigating your discrimination claim.
7. Consult counsel as early as possible. Don’t wait until months after your termination to talk to a lawyer. Don’t wait until EEOC has investigated your claim and issued a Right to Sue letter. As time passes, it becomes more and more difficult for an attorney to help you gather evidence and prepare your case. If you have evidence that you have suffered discrimination, contact an attorney as soon as possible. What you do in the early stages of your case is highly important, and an attorney can guide you. If you are ready to seek legal counsel, we are anxious to help. Please contact us today.