Sue Your Employer for Discrimination

It is illegal to discriminate against an employee on the basis of race, age, gender, religion, national origin, and other protected characteristics. If you feel that you have been discriminated against, then you can sue your employer for discrimination. To bring a successful discrimination suit, you will need to first file a charge of discrimination with a state or federal administrative agency. Most successful discrimination cases require the assistance of a qualified attorney.

Steps

Understanding Discrimination Law

  1. Identify protected characteristics. Federal law prohibits discrimination on the basis of certain protected characteristics. These include race, color, national origin, religion, age (40 or older), disability, and genetic information.[1]
    • It is also illegal to discriminate on the basis of sex (whether the person is male or female). According to federal law, “sex” discrimination includes discrimination based on pregnancy. For this reason, it is against the law to fire a pregnant woman because of her pregnancy.[2]
    • “Sexual orientation” discrimination may also be prohibited under “sex.” For example, it is currently illegal to fire a gay male because he is too “effeminate” or otherwise fails to conform to stereotypical gender expectations.[3]
      • The law on sexual orientation discrimination is constantly changing. In July 2015, the federal Equal Employment Opportunity Commission (EEOC) decided that discrimination on the basis of sexual orientation qualifies as “sex” discrimination.[4] However, the federal courts, not the EEOC, must decide whether or not this is a valid interpretation of federal law.
      • If you want to bring a discrimination claim on the basis of sexual orientation, then you should meet with a lawyer to discuss whether federal law will cover your claim.
    • It is also illegal to retaliate against any employee who reports illegal discrimination, regardless of whether any actual discrimination occurred.[5]
  2. Research your state law. Federal law is not the only source of anti-discrimination law. States and municipal governments also have anti-discrimination laws which you can use to sue your employer. These laws can sometimes offer greater protection than federal law. For example, some state age discrimination laws might protect people younger than 40.[6]
    • To find your state or municipal anti-discrimination laws, perform an Internet search. Type “anti-discrimination” and your state or county into your favorite web browser. If you cannot find anything, then visit your local law library, which is typically held at the county courthouse.
  3. Understand “adverse employment action.” Discrimination is prohibited in all aspects of employment. Common adverse actions include: [7]
    • firing
    • demotion
    • not being rehired
    • discriminatory pay or benefits
    • discipline
    • failure to reasonably accommodate religion or disability
  4. Check if your employer is covered. Federal anti-discrimination law does not cover every employer, so you need to find out if your employer is covered before you bring a discrimination lawsuit under federal law. To be covered, an employer must employ a certain number of people. The number varies depending on the type of discrimination you are alleging and the type of employer (private or public, a union or government agency).[8]
    • For example, the federal prohibition on race or sex discrimination covers businesses that have had at least 15 employees working for at least 20 calendar weeks during the past two years.[9]
    • By contrast, the age discrimination provisions apply only if the employer had at least 20 employees in the same time frame.[10]
  5. Hire a lawyer. You do not need an attorney to file a complaint with the EEOC.[11] However, there are many benefits to retaining a lawyer. A qualified employment attorney can advise you whether your claim has merit. Also, you will need a lawyer if you bring a lawsuit in court after filing your complaint with an administrative agency.
    • If costs are a concern, then you should ask an employer lawyer if they will represent you on contingency. Under this arrangement, your lawyer will not get paid any fees unless you win your case. (You will still be responsible for the costs of litigation, such as filing fees and court reporter fees).[12] Generally, employment law attorneys will take 33-40% of any award that you win. Be sure to ask about contingency fee arrangements during your consultation.[13]
    • You can also try to find a legal aid organization that handles employment or discrimination matters. One organization is The Legal Aid Society Employment Law Center.[14] To find a local legal aid organization, you can visit the Legal Services Corporation’s website and search by your zip code.
    • For additional tips on finding an employment lawyer, see Find an Employment Lawyer.

Documenting the Discrimination

  1. Speak to co-workers. Find out if anyone witnessed your employer discriminate against you. If they did, try to get their personal contact information, such as private phone number or email address. By the time you go to trial, a couple years could have passed and the person may no longer be working for the company. You will want to be able to contact these witnesses when the time arrives.
    • You also should speak to co-workers who differ from you in terms of age, race, gender, or religion. If they were treated differently on the job, then you may have strong evidence of discriminatory intent.
  2. Get copies of your performance reviews. At a minimum, you should try to secure copies of your performance reviews. Employers often defend against discrimination lawsuits by claiming that your poor performance warranted firing. You should check your past performance reviews to see if your employer noted poor performance. If not, then you have proof that claims of poor performance might be merely a pretext.
    • If you were fired, also hang onto a copy of your termination notice.[15]
  3. Document conversations. You should also preserve all communications that you have had with relevant parties, such as supervisors or other members of management. Save all emails, letters, memos, notes, and voicemails. Your attorney will want to see all of these as they may contain evidence of bias.
    • You should also summarize any relevant face-to-face conversations. As soon as possible, sit down and write down your memories of the conversation, paying particular attention to any language you think illustrates bias.
  4. Ask for a copy of your personnel file. With luck, you kept a record of all official communications, such as prior reprimands or commendations, as well as informal comments and information about raises.[16] If you did not, then your personnel file should have this information. It also might contain other critical information. For example, members of management may have had communications about you, or comments may have been written in the margins of documents. Any of these comments could show bias on your employer’s part.
    • Your employer might not want to share your personnel file with you, even when you ask politely. However, once you file a lawsuit you can subpoena a copy of the file. The subpoena will command your employer to produce it.
  5. Keep pay stubs. You will need to prove how much the discrimination has cost you. Pay stubs will help establish the amount of wages you lost because of the discrimination.[17]
    • Also hold onto documents that discuss the value of fringe benefits that employees receive, such as contributions to retirement accounts, health insurance premiums, or life insurance policies.

Filing an Administrative Charge

  1. Understand why you must file an administrative charge. Before you can file a lawsuit in court, you need a “Notice-of-Right-to-Sue” Notice from the EEOC. The EEOC will issue the notice after it performs its investigation.[18] You may also file your charge with an equivalent state agency, if one is available in your state. State agencies may grant a Right-to-Sue notice immediately if you request it.
    • You might want to sue before the agency has finished its investigation. If at least 180 days have passed since you filed your charge, then you can request a Right-to-Sue letter by writing to the Director of the office where you filed your charge. If the EEOC issues the notice, then the agency’s investigation will be closed.[19]
    • Once you receive your Right-to-Sue Notice, you have 90 days to file your lawsuit. This deadline can only be extended in limited circumstances.
  2. Do not wait. You have tight deadlines that you must meet. If you are a federal employee, then you must report the discrimination within 45 days of the discriminatory event. If you are not a federal employee, then you have 180 days to report. Should your state laws provide more than 180 days, then you generally will have up to 300 days.[20]
    • In any event, you should bring a complaint to the appropriate administrative agency as soon as possible.
  3. Choose an office to file a charge with. You may file your charge of discrimination with either the federal government’s EEOC or with a state administrative agency. State agencies often afford greater protections than the EEOC. You can talk with your attorney about which agency you should file with.
    • A charge filed with one office will be filed automatically with the other office.[21] Accordingly, if you file with your state agency, then the charge will be shared with the EEOC.
  4. File with the EEOC. You can visit one of the EEOC’s 53 field offices and file a charge in person. To find the field office nearest to you, visit the EEOC website, which shows the location of its field offices.
  5. Write a letter to the EEOC. If no field office is near you, then you can file your charge by mailing a letter to the EEOC. Make sure that the letter includes the following information:[22]
    • your name, address, and telephone number
    • your employer’s name, address, and telephone number
    • the number of employees employed there
    • a short description of the events you believe were discriminatory
    • when the events took place
    • that age discrimination was the motivation for the discriminatory events
    • your signature
  6. File with your state agency. Instead of filing with the EEOC, you can file with a state agency. The exact process will vary by state. In California, for example, you must first file a “pre-complaint inquiry” with the Department of Fair Employment and Housing Office (DFEH). There are four ways to do so:[23]
    • Call 800-884-1684 (or 800-884-1684 if deaf or hard of hearing).
    • Print out and mail an Inquiry form to a DFEH office.
    • Complete the Inquiry form and email it to contact.center@dfeh.ca.gov.

Bringing a Lawsuit

  1. File a complaint. You begin a lawsuit by filing a complaint for discrimination. Your lawyer can draft the complaint for you. A complaint will allege the factual circumstances surrounding the discrimination and also request relief.
    • Some courts have printed “fill in the blank” complaints.
    • To find a sample complaint, you can search the web.
  2. Engage in discovery. Once a lawsuit is filed, the parties will engage in investigation. Discovery is a process where parties request information in the possession, custody, or control of the other party. There are many different discovery techniques available to you. Among the most common are:[24]
    • Requests for Production. You can request a copy of any document from your employer that is relevant to the case. In a discrimination case, you should seek your personnel file, job contract, and communications made by supervisors about you.
    • Interrogatories. With interrogatories, you serve written questions on your employer. Your employer must answer the questions under oath.
    • Depositions. In a deposition, your lawyer will ask questions of a witness face-to-face. The parties usually meet in a lawyer’s office, and the questions and answers are recorded by a court reporter. The person deposed answers questions under oath. If the witness cannot attend trial, then sometimes the testimony can be read at trial.
  3. Sit for a deposition. As the plaintiff in a discrimination lawsuit, you will certainly have to sit for a deposition. You can prepare for the deposition by sitting down with your lawyer and doing a trial run. You should prepare for your employer to dredge up any embarrassing incidents from work and to ask you about them.
    • Remember, your employer will likely defend itself by claiming that you were a poor employee who needed to be fired for non-discriminatory reasons. Accordingly, you should be prepared for embarrassing information to be revealed about you at any point in the lawsuit (including at trial).
    • During your deposition, refrain from volunteering too much information. Also make sure that you understand the questions before answering. You don’t want to answer a question that hasn’t been asked.
    • Also never guess for an answer. Instead say, “I don’t remember” or “I don’t know,” if you do not remember information.[25]
  4. Defend against a motion for summary judgment. Many employment discrimination suits are dismissed before trial. You should expect your employer to try to get the case dismissed as well. In a motion for summary judgment, your employer will argue that there are no factual disputes to be resolved by a trial and that it is entitled to judgment as a matter of law.[26]
    • Your attorney will try to defend against the motion for summary judgment by pointing out what material facts are in dispute. In a discrimination case, your employer’s motivation or state of mind is often the central fact in dispute. Whether or not a boss was motivated by bias is usually a question for the jury.
    • As a plaintiff you, too, can ask for summary judgment. However, as a practical matter, plaintiffs rarely win a discrimination case on summary judgment.
  5. Consider Alternate Dispute Resolution (ADR). If you defeat your employer’s motion for summary judgment, then you should expect your employer to propose participating in ADR. The most common forms of ADR are negotiation and mediation. You may also go to arbitration instead of a trial.
    • In negotiation, you and your employer will try to come to an agreement to settle the dispute between yourselves. You should have a lawyer if you intend to participate in negotiation. An experienced negotiator can effectively bargain for a larger settlement than your employer’s initial offer.
    • Mediation is similar to negotiation, except in mediation the parties meet with a neutral third party (the mediator) who helps guide the parties to a mutually-agreeable resolution. Either party may walk away from mediation as it is voluntary.[27]
    • Arbitration is like a trial, except you and your employer will argue the case before a private party (the arbitrator) instead of a judge. You and your employer will both have to agree to the selection of the arbitrator. Employers often like arbitration because the proceedings can be kept private, unlike in a lawsuit. Arbitration is also less expensive than a trial.[28]
      • However, arbitration is binding, and you may give up your right to appeal by agreeing to arbitration. Accordingly, you should discuss this option carefully with your lawyer before agreeing to participate.

Going to Trial

  1. Select a jury. If you get to trial, then you can choose whether to have your case heard by the judge or a jury. If you choose a jury, then you and your attorney will need to select jurors in a process called “voir dire.” During this process, your lawyer will ask jurors questions in order to uncover hidden biases.
    • In discrimination cases, a plaintiff’s attorney will often try to feel out jurors’ opinions on whether cases should be resolved out of court and whether they think employees bring lawsuits just for money. Furthermore, your attorney should try to find out whether prospective jurors have had personal experience of discrimination or harassment, and whether they have brought lawsuits themselves.
    • If jurors admit to bias, then your lawyer will be able to strike prospective jurors for cause. Your lawyer will also have a number of peremptory challenges, which can be exercised without giving a reason.
  2. Deliver an opening statement. As the plaintiff, your lawyer will deliver an opening statement first. An effective opening statement will provide jurors with a preview of the evidence and it will also introduce your theme.[29] In an employment discrimination case, the theme is often a culture of harassment or discrimination at jobsite.
    • Opening statements also should cover “bad facts.” A bad fact is something that your employer will raise to the jury. For example, the fact that you were reprimanded for failing to perform a work assignment is a bad fact, as it supports a claim that you were fired for being a bad employee. By raising the bad fact before the defense can, your attorney can take the sting out of it.
  3. Present witnesses and evidence. Your lawyer will present evidence first. The evidence will consist of witness testimony and documentary exhibits. As the plaintiff in discrimination suit, you should expect to be called as a witness. While you prepare for your testimony, remember the following:[30]
    • Dress conservatively. Jurors will judge your credibility in part based on how you look.
    • Look at the attorney asking you questions. When you answer, turn to the jury and look them in the eyes.
    • Always speak clearly. Don’t answer questions with gestures, like nods.
    • Do not answer a question if a lawyer objects to it. Instead, wait for the judge to rule on the objection and then answer.
    • Listen carefully. As with your deposition, you should answer only the question asked and never guess at an answer. Always answer questions truthfully, even if the truth is embarrassing.
  4. Cross examine witnesses. After you have presented your case, your employer will also be able to present witnesses and introduce evidence. Your attorney’s job is to poke holes in the witness testimony and to cast doubt on their credibility.
    • You should be prepared to hear negative testimony about your work habits specifically and about your personality generally. Some plaintiffs are surprised when co-workers testify that they think the plaintiff was a terrible employee or mistaken when interpreting certain acts as discriminatory.[31]
  5. Summarize the evidence in a closing argument. After all evidence has been introduced, each party will present a closing argument. The purpose of your lawyer’s closing argument is to summarize the evidence and show the jury how that evidence supports your claim of discrimination.
    • Your lawyer will want to start and end strong. Research shows that jurors pay attention to the first and last argument made in a closing argument.
    • Jurors also do not have strong attention spans, so the closing argument should be as brief as possible.
  6. Wait for the verdict. The judge will charge the jury, which will then retire to deliberate. If you are suing in federal court, then the verdict must be unanimous. In state courts, verdicts often do not need to be unanimous.[32] Instead, you can win if 10 out of 12 jurors agree with you.
  7. Appeal, if necessary. If you are unhappy with the verdict, then you may be able to appeal. You should discuss whether you want to appeal with your attorney. Considerations include costs, the amount of time an appeal will take, and whether an appeal is worth the stress.

Tips

  • You should take offers to settle seriously. Settling will allow you to avoid a lengthy trial process. Also a settlement is guaranteed money; you don’t run the risk of a jury disbelieving you and awarding you nothing. If your employer wants to discuss settlement, then talk it over with your lawyer.

References

  1. ↑ http://www.eeoc.gov/employees/coverage.cfm
  2. ↑ http://www.eeoc.gov/laws/statutes/titlevii.cfm
  3. ↑ https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/16/anti-gay-discrimination-is-sex-discrimination-says-the-eeoc/
  4. ↑ https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/16/anti-gay-discrimination-is-sex-discrimination-says-the-eeoc/
  5. ↑ http://www.eeoc.gov/laws/types/retaliation.cfm
  6. ↑ http://eeoc.gov/laws/types/age.cfm
  7. ↑ http://www.eeoc.gov/laws/practices/index.cfm
  8. ↑ http://www.eeoc.gov/employees/coverage.cfm
  9. ↑ http://www.eeoc.gov/employees/coverage_private.cfm
  10. ↑ http://www.eeoc.gov/employees/coverage_private.cfm
  11. ↑ http://www.eeoc.gov/employees/howtofile.cfm
  12. ↑ http://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/archive/2012/07/30/top-13-things-not-to-say-to-an-employment-lawyer.aspx
  13. ↑ http://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter17-5.html
  14. ↑ https://las-elc.org/
  15. ↑ http://www.nolo.com/legal-encyclopedia/wrongful-termination-gathering-documentation-32283.html
  16. ↑ http://www.nolo.com/legal-encyclopedia/wrongful-termination-gathering-documentation-32283.html
  17. ↑ http://www.legalmatch.com/law-library/article/how-to-file-a-wrongful-termination-suit.html
  18. ↑ http://www.eeoc.gov/employees/lawsuit.cfm
  19. ↑ http://www.eeoc.gov/employees/lawsuit.cfm
  20. ↑ http://www.eeoc.gov/employees/timeliness.cfm
  21. ↑ http://eeoc.gov/employees/howtofile.cfm
  22. ↑ http://eeoc.gov/employees/howtofile.cfm
  23. ↑ http://www.dfeh.ca.gov/
  24. ↑ http://www.nolo.com/legal-encyclopedia/formal-discovery-gathering-evidence-lawsuit-29764.html
  25. ↑ http://www.expertlaw.com/library/expert_witness/deposition_prep.html
  26. ↑ https://www.law.cornell.edu/rules/frcp/rule_56
  27. ↑ http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5543&context=lalrev
  28. ↑ http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5543&context=lalrev
  29. ↑ http://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PLIT_PLIT0411-McWilliams_thumb.pdf
  30. ↑ http://www.pimall.com/nais/n.testify.html
  31. ↑ http://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/archive/2013/05/30/employees-better-think-twice-before-suing-your-employer-four-reasons-why.aspx
  32. ↑ http://litigation.findlaw.com/legal-system/must-all-jury-verdicts-be-unanimous.html
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