Sue the Government for Discrimination

Just as private employers can discriminate against employees, government employers can do the same. If you work for the federal or a state government and you feel as though you were discriminated against for some illegal reason, you can bring a series of actions to try and remedy the prohibited action. However, because you will be fighting the government, you will have to exhaust the agency complaint process before you can bring a lawsuit. Once you exhaust the administrative processes, you will be able to file a discrimination lawsuit in federal or state court.


Navigating the Required Agency Complaint Process

  1. Analyze the discrimination at play. Federal and state laws exist that prohibit government employment discrimination. If you are an employee of your state or the federal government, and you were discriminated against during your employment, you may have a claim against the government employer. The first step in the legal process is to determine what law to make your claim under.
    • The federal Equal Employment Opportunity Act prohibits discrimination in the federal workplace and allows federal employees to make complaints with the agency they work for, as well as the U.S. Equal Employment Opportunity Commission (EEOC). This law allows discrimination complaints based on religion, color, race, sex, national origin, age, disability, union activity, or pregnancy.
    • Most state anti-discrimination laws allow complaints against public employers (i.e., the government). In addition, some state laws are more broad than the federal law and protect against more types of discrimination. For example, in California, an employer cannot discriminate based marital status, gender identity, gender expression, or sexual orientation, to name a few.[1] If you live in a state where the anti-discrimination laws are broader than the federal law, you might consider making your legal claim under state law.[2]
  2. Gather evidence of the discrimination. Once you know the discrimination you suffered is covered by state and/or federal law, you will need to gather evidence to support your employment discrimination claims. The evidence you collect will be the basis for your administrative complaint and lawsuit against your government employer. To collect sufficient evidence, try the following:[3]
    • Keep a journal. Write the contact information of yourself and your employer. Put as much information into the journal as possible. This might include the names of superiors, names of coworkers, email addresses, websites, and more. This will help you remember who was involved in your discrimination.
    • Write a detailed description of the discrimination. Include the dates the discrimination occurred and the nature of that discrimination. Your description should discuss why you believe you were discriminated against, the type of discrimination that occurred (e.g., age, sexual orientation, religion), and the context of the discrimination (e.g., were you passed up for a promotion, fired, or demoted).
    • Gather written memos, performance reviews, and any digital materials that can document the discrimination.[4]
    • Talk to other employees. Ask others if they will testify on your behalf if necessary and ask if they have experienced similar discrimination in the past. Be sure you write down the names and contact information of the people willing to help you.[5]
  3. Choose where to file your complaint. With the evidence in hand, you will start the remedial process by filing a complaint with your state's agency or talking with an EEO Counselor. For example, in California, you would file with the Department of Fair Employment and Housing (DFEH). Your choice will depend on a number of factors, including:[6]
    • Which law covers the discrimination you experienced; and
    • Which agency has the most favorable time limits (if you are a federal employee or job applicant you only have 45 days to talk with an EEO Counselor).[7]
  4. Contact your EEO Counselor. Each federal agency has an EEO Counselor and you need to contact the Counselor with the agency you work for. You must do this within 45 days of the discrimination. The EEO Counselor will discuss your complaint with you and determine how to proceed. Most often, the Counselor will give you the option of going through counseling or taking part in mediation. These options are meant to keep complaints out of the courtroom in hopes they get resolved quickly and amicably.
    • If you do not settle your dispute at this stage, you will have 15 days to file a formal complaint (from the time your EEO Counselor gives you this option).[8]
  5. File a formal complaint. To file a formal federal complaint, talk with your EEO Counselor. The agency that employs you will then investigate your claim and decide whether it should be dismissed or investigated. If an investigation occurs, the agency will have 180 days to conduct and finish it.[9]
    • If you are filing a complaint with your state agency in charge of fair employment practices, you will need to visit their website to determine exactly what needs to be done. In California, for example, you would file an online complaint with DFEH. If the complaint is accepted, it will be served on your employer and you will need to take part in mediation. If mediation fails, DFEH will conduct an investigation.
  6. Await a decision. After the investigation has been completed, you will get a a decision from the agency you filed with. If you filed with your federal EEO Counselor, the agency you worked for will issue a final decision determining whether discrimination occurred. This decision by the federal agency is considered final agency action, which means you will be deemed to have exhausted administrative processes should you choose to file a lawsuit (i.e., your lawsuit will not be dismissed so long as you receive this final agency decision).[10]
    • If you filed with your state, it will issue a decision as to whether discrimination occurred. If the state agency finds it probable that there was a violation of law, your case will be passed on to the legal division.

Filing Your Lawsuit

  1. Determine where you will sue. In order to sue someone in court, you will have to prove to the court that it has jurisdiction over the defendant and over the subject matter. If you worked for a federal agency and went through the federal administrative process with your EEO Counselor, you will be required to file your employment discrimination lawsuit in federal court. The federal court will have jurisdiction because you will be suing a federal officer or agency under federal law.[11][12]
    • In a state like California, the DFEH will file the complaint in state civil court on your behalf. While the DFEH will prosecute the case, you will be the party in interest.[13]
    • Other states may allow you to bring a personal lawsuit against the state agency or officer alleged to have discriminated against you, so long as you first exhaust your administrative remedies. Check with your state's laws to understand the process you will need to follow.
  2. Draft your complaint. If you are filing your own lawsuit, you will draft a complaint to start the legal process. A complaint is a legal document that tells the judge and the defendant how and why the defendant broke the law and what you want to court to do to remedy the situation. Your complaint will need to include at least the following information:[14]
    • A caption, which will identify the parties to the case and the court you will be filing it in.
    • A description of the parties.
    • Your basis for jurisdiction. If you are suing the federal agency you worked for, that is all you will have to say in order to get into federal court. If you are in state court, you will simply have to say you are suing a state agency.
    • The nature of your suit and your cause of action, which in your case will be an employment discrimination suit based on either your state's anti-discrimination law or the federal Equal Employment Opportunity Act and the Civil Rights Act.
    • The relief you request, which will be the dollar amount you are asking the government to pay you to remedy the discrimination.
  3. Fill out your summons. In addition to the complaint, your lawsuit must also contain a summons form before you can file it. A summons form notifies the defendant that they are being sued and requests their response within a certain time period. You can find a summons form on the court website or at the physical courthouse where you plan on filing your case. Usually the form will already be completed and all you will have to do is fill in the defendant's name.[15]
  4. File your papers. Take your complaint and summons form to the courthouse and file them with the clerk of courts. The clerk of courts will look over your documents and verify everything has been completed. If everything checks out, you will be required to pay a filing fee to start your case. In federal court the fee is $400. In state court, the fees will vary depending on where you are located.
    • If you cannot afford the fees, you can file a motion with the court asking that the fees be waived. If your motion is granted, you will not have to pay the filing fee.
    • Once the fee has been paid or waived, the clerk will stamp "filed" on your documents and return copies to you. The original will be left with the court.[16]
  5. Serve the defendant. The clerk of courts will return copies of your lawsuit to you. One of those copies must be given to the defendant in order to notify them of the case. To serve the defendant, you must have someone over the age of 18, who is unrelated to the case, give your lawsuit to the defendant personally or through the mail. Once service has been completed, the server will fill out a return of service form and give it to you. That form must be filed with the court to let it know service has been completed.
    • Because you will likely be serving the federal or state government, you will need to serve the lawsuit on the person in the government who is responsible for being served. Check with your government to find out who that would be.[17] When you sue a federal agency, you cannot ask for a waiver of service.[18]
  6. Await the defendant’s answer. Once the defendant receives a copy of your lawsuit, they will have a short period of time to respond. The most common response will be an answer, which is a formal legal document responding to each of your allegations. In addition, the answer might include counter-complaints if the government feels as if you have broken the law in some way.
    • Read the answer carefully as it will give you valuable insight into how the government plans to defend against your case. Talk with your attorney about how to move forward based on how they respond.

Taking Part in Pretrial Actions

  1. Conduct discovery. Discovery allows each party to request information in order to prepare for trial. During discovery you will be able to talk to witnesses, obtain documents, get an idea of what the defendant will say, and get an idea of how strong your case is. In order to achieve these goals, you will be able to use the following tools:[19]
    • Depositions, which are formal interviews conducted under oath. You can use the answers to deposition questions in court.
    • Interrogatories, which are written questions to a witness or party that they are required to answer under oath.
    • Document requests, which are written requests for the production of documents not otherwise available to the public.
    • Requests for admission, which are written statements the defendant must admit or deny.
  2. Defend against a motion for summary judgment. As soon as discovery ends, the government will likely file a motion for summary judgment, which asks the court to end the litigation immediately and rule in the defendant's favor. To be successful, the defendant will have to show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. In other words, the defendant will have to persuade the court that, even if it made all assumptions in your favor, you would still lose the case if it went to trial.
    • You can defend against this motion by filing affidavits and evidence showing the court there are factual discrepancies that need to be hashed out at trial. If you are successful, the litigation will continue.[20]
  3. Attempt to settle. If the litigation is continuing, you might want to consider trying to settle before it goes to trial. A trial can cost a lot of money and is very time consuming. To settle, sit down with the defendant and discuss your case and what you hope to get out of it. Listen to the defendant and see if you can come to an agreement. If informal discussions do not work, you might try the following:
    • Mediation, which involves bringing in a neutral third party to help the discussion. The third party will sit down with both parties and discuss where there is room for agreement. The third party will not take sides and will not offer any opinions.
    • Arbitration, which involves bringing in a judge-like third party to listen to evidence and draft an opinion. The arbitrator will let each party present their case and at the end the arbitrator will take sides and issue his or her opinion.
  4. Attend the final pretrial hearing. If no settlement is reached, you and the other party will sit down with the judge one final time before the trial. During this conference, the judge will discuss the issues of the trial and will put together a trial road-map. Be sure you bring all of your issues to the table at this conference. If one of your issues was neglected and did not make it on the road-map, you will not be able to bring it up during trial.[21]

Going to Trial

  1. Choose a jury. If you invoked your right to a jury in your complaint, you will choose your jury right before the trial begins. In a process called "voire dire", you will ask questions of potential jurors in order to understand their intentions and biases. If you believe a potential juror would be biased towards you, you can ask the court to have him or her removed from the jury pool. Once a jury has been settled on, they will be impaneled and the trial will begin.[22]
    • If you waived your right to a jury, the judge will determine all of the factual issues in your case.
  2. Make an opening statement. Your trial will start when you make an opening statement to the court. Your opening statement should outline your case for employment discrimination and should make clear that, throughout the trial, you will introduce more than enough evidence to find the defendant liable. Your opening statement should be a road-map of the litigation and should not introduce evidence. Keep your statement short and to the point, you do not want to confuse the jury from the beginning.
    • After you make an opening statement, the government will have an opportunity to do the same. However, in some situations, the government may wait to make their remarks until after you have presented your case.
  3. Present your case. You will start presenting your case by calling your first witness to the stand. You will ask the witness questions about the discrimination and introduce physical evidence through him or her. When you are done examining each of your witnesses, the defense will have an opportunity to cross-examine them.[23]
  4. Cross-examine witnesses. When you have rested and presented your case, the defense will have their turn doing the same. After each witness has been questioned by the defendant, you will have an opportunity to cross-examine them.[24] During cross-examination you will try to discredit the individual's testimony by making them look biased or untrustworthy.
    • For example, if a defense witness claims on the witness stand that they never heard your boss call you a derogatory term when he or she fired you, but during their deposition they said they did hear it, you should bring that up.
  5. Give your closing argument. Once the defense has rested, the trial will end with each party giving a closing argument. As the plaintiff, you will go first. Your closing argument should recap the trial and tie a bow around any loose ends. You should highlight important pieces of the trial and make it clear that you have proved your case for employment discrimination.
    • When you have completed your closing argument, the defendant will have an opportunity to make one as well.
  6. Await the verdict. When the trial is over, the fact-finder (i.e., the jury or judge) will take some time to deliberate and think about the evidence that was presented. When the fact-finder comes to a conclusion about who should win the case, they will announce their verdict in court. If you win, the government will have to pay you damages for the discrimination. If you lose, the government will not have to pay you and will not be found liable for employment discrimination.[25]

Hiring a Lawyer

  1. Talk with friends and family. If you plan on suing the federal or state government for employment discrimination, you really need to hire a qualified lawyer. Suing the government is difficult at every level, including simply getting into court. To find a qualified lawyer, start by asking the people you know for recommendations. Lawyers are often very public figures with deep ties to the community. Because of this, a lot of people know or have hired lawyers. At this point, get any lawyer contact information you can, regardless of their practice area. For example, if your friend knows a criminal defense lawyer, get his or her information.
    • Once you have the names of some attorneys, call them and ask if they know anyone who deals with suits against the government.
  2. Use state bar resources. If you cannot get any good recommendations by asking around, contact your state bar's lawyer referral service. Every state has a program meant to get you in contact with qualified lawyers in your area. The state bar will ask you some general questions about your case and in turn they will give you the contact information of various lawyers.
  3. Consider low-cost options. If you cannot afford a lawyer's services, try a more cost-effective approach to get the legal help you need. However, be aware that you often get what you pay for and if you plan on suing the government, you should consider sparing no cost. If you need to use a low-cost option, check out nonprofit law firms, pro bono services, and legal aid services.
    • Nonprofit law firms charge for legal services on a sliding scale based on your income and family size. The normal cost of legal services at a nonprofit law firm ranges from $60 to $145 per hour. If you were to hire a private lawyer to do the same work, you might pay between $150 and $500 per hour. Check to see if you have any nonprofit law firms in your area.
    • Lawyers are encouraged to offer a number of hours of free legal services to the community every year (pro bono services). While this is not a requirement in most states, a lot of lawyers will take on some cases for free. If you cannot afford a lawyer you want to hire, ask if he or she would take on your case pro bono.
    • Legal aid services offer free legal services to low-income individuals who cannot afford to pay on their own. Legal aid offices usually only take on certain cases, but some might take on public employment disputes. Call your local legal aid organization to see if they would handle your case. If you qualify, you would get the legal services for free.
  4. Research every candidate online. Once you have a list of qualified candidates, research their credentials online. Start by looking at lawyer reviews online. Websites like Avvo and offer review services where past clients and others can openly discuss their experiences.[26][27] However, do not read too much into each review. Disgruntled clients may write bad reviews even though the lawyer did everything he or she could. Also, friends and family might write positive reviews about someone without ever using their services.
    • In addition to look at review websites, visit the lawyer's personal website or his or her firm's website. Read up on the attorney, their practice areas, their success stories, and their educational history. A lawyer's website should be clean, easy to navigate, and up-to-date.
  5. Check each candidate’s history of discipline. Before conducting personal interviews, check with your state bar about each candidate's history of discipline. Lawyers are held to certain professional standards set by state rules of professional conduct. If a lawyer does not act in accordance with those rules, he or she can be sanctioned, suspended, or even disbarred for doing so. You should avoid hiring a lawyer with a history of discipline whenever possible.
    • To check, visit your state bar's website and use the search function to type in the lawyer's name or bar number. When you find the lawyer's profile, there will be a section about their history of discipline.
  6. Conduct initial consultations. When you have a list of three or four really good choices, call each one to set up an initial consultation. An initial consultation allows you to meet each attorney in-person and get a feel for their work. When you set up the meeting, make sure you ask about costs. Some lawyers will offer the initial consultation for free while others will charge. Before you go to your meetings, prepare a set of questions to ask. Common questions include:
    • How long has the lawyer been practicing law?
    • How many cases has the lawyer brought against the government?
    • How successful has the lawyer been in bringing cases against the government?
    • Based on what he or she sees about your case, what are your chances of success?
    • How long will the case take to litigate?
    • Will the lawyer be doing all of the work alone, or will he or she have help?
    • Does the lawyer have good relationships with government officials and other lawyers in the community?
  7. Discuss fees. Before you leave your initial consultation, make sure you ask what the lawyer charges. Lawyers usually set their fees based on the time and effort involved, the difficulty of the case, customary charges in your location, and whether the lawyer has an existing relationship with you. The most common fee arrangements take the form of:[28]
    • Time billing, which are fees charged based on how much time the lawyer spends working on your case. Usually this takes the form of hourly fees ranging from $150 to $500 per hour. This is the most common form of billing for lawyers.
    • Contingency fees, which are fees wholly dependent on the outcome of the case. The lawyer will not get paid upfront and will instead take a percentage of what you are awarded. Generally, the percentage a lawyer will take range from 30% to 65% of your total award.
    • Flat fees, which are set fees for specific actions. These fees are usually reserved for actions that a lawyer feels very comfortable with and knows how long they will take to complete. For example, a lawyer may charge a flat fee of $1,000 to draft and file a federal lawsuit. That same lawyer may charge you another $5,000 if he or she has to take part in an administrative hearing.
  8. Make your choice. After you have done your research, hire the attorney you feel most comfortable with and who you think will help you win. While you should always consider the cost of representation, it should not be the determining factor. When you make your choice, call the lawyer right away and ask if they will represent you. If a lawyer declines your offer, move on to the next person on your list.
    • When you hire a lawyer, make sure you get the representation agreement, which includes the fee arrangement, in writing.


  4. [v161886_b01]. 18 August 2021.
  5. [v161886_b01]. 18 August 2021.