Despite the progress that’s been made over the last several decades, discrimination and harassment are still unfortunate realities in the workplace. According to the Equal Employment Opportunity Commission, the agency that enforces federal antidiscrimination laws, there were close to 90,000 complaints filed in 2014 alone.
In all states, most employers are prohibited from treating employees differently based on race, color, national origin, sex, pregnancy, age (40 and older), religion, disability, citizenship status, and genetic information. Many states have created laws that protect additional characteristics, such as marital status or sexual orientation. (For more information, including the laws in your state, see Your Rights Against Workplace Discrimination & Harassment.)
If you were fired, let go, or (in some cases) forced to quit your job because of your membership in a protected class, you may have a wrongful termination case on your hands. This article explains the different options for pursuing your case and how to find and work with a lawyer.
If you want to pursue a wrongful termination case, there are several avenues available to you. They range from informal, such as engaging in settlement discussions with your employer, to formal, such as filing an administrative claim or lawsuit.
In some cases, you may be able to reach a settlement agreement with your employer through informal negotiations. A lawyer can be helpful, even at this stage, because he or she can explain the legal grounds for your claims and advise you on what a fair settlement would be for your case. Your employer may also take your claims more seriously if there’s a lawyer in the picture.
As a first step, your lawyer might call up your employer (or its lawyer) to talk about the merits of the case and see if your employer is interested in settlement discussions. Or, your lawyer might send your employer a “demand letter,” outlining your claims and making an initial settlement demand. If your employer is open to a settlement, it may have its lawyer call your lawyer to negotiate. The lawyers may then go back and forth with counteroffers until a compromise is reached. Depending on how strong your case is and how much money is at stake, you may be able to resolve your case at this stage.
Before you can file a discrimination or harassment lawsuit based on federal law, you must first file an administrative claim with the Equal Employment Opportunity Commission (EEOC). If your state has its own antidiscrimination laws, you may need to file a claim with a similar state agency.
The EEOC will investigate your claim. In rare cases, the EEOC may decide to file a lawsuit against your employer on your behalf. However, more often, the EEOC will issue you a “right-to-sue letter,” which gives you the right to move forward with your lawsuit in court. If the EEOC takes longer than 180 days to investigate your claim, it must issue you a right-to-sue letter upon your request.
You may file a claim yourself, or you may have a lawyer file a claim for you. It can be beneficial to hire a lawyer at this stage, especially if you want a quicker resolution of your claims. A lawyer will know what documents to obtain, how to maximize settlement negotiations, and how to present your case in the most persuasive light. And, your employer may be more inclined to settle if it knows that a lawyer is ready and willing to file a lawsuit on your behalf.
Once you receive a right-to-sue letter from the EEOC, you generally have only 90 days to file a lawsuit in court. Because filing a lawsuit requires knowledge of detailed procedural rules and substantive law, most employees will need a lawyer at this stage of the process. A lawyer will be able to identify any claims that you have under state and federal law, file your complaint, and represent you throughout the case – and if necessary, throughout a trial.
Mediation is an informal settlement tool that can be used at any point in your case. At mediation, a neutral third party will try to help you and your employer reach a settlement agreement. The mediator does not make an actual decision in the case, however. So if you and your employer can’t agree, your case will simply continue on to the next stage. If you file an administrative claim or lawsuit, you will likely participate in mediation at least once. However, if your employer agrees, you could even set up a mediation before you get that far.
No matter what route you decide to take, it’s a good idea to at least consult with a lawyer before taking legal action. In many cases, an employment lawyer will agree to an initial consultation for free or at relatively low cost. During the consultation, the lawyer will ask you questions and assess the strength of your case.
If your case is strong and the lawyer believes it will be worth both of your time to pursue, he or she may agree to represent you. Lawyers who represent employees often agree take on wrongful termination cases on a contingency fee basis. This means that the lawyer will take a percentage out of your recovery, rather than charge you on an hourly basis. This can be advantageous if you don’t have the money upfront to pay for what could be hundreds of attorney hours.
The lawyer might also agree to represent you on a more limited basis for an hourly fee. For example, if your claim is relatively small and straightforward, you could hire the lawyer to help you prepare your complaint and give you behind-the-scenes guidance on your claim. That way, you can pay limited attorneys’ fees and still keep the full award or settlement you receive from your employer.
A lawyer may also agree to a combination of these arrangements (for more information see, What Will It Cost to Hire a Lawyer for Your Wrongful Termination Case?).
To make the most out of your initial meeting with a lawyer, you should come prepared with certain documents. A lawyer evaluating your case will want to see:
You may also want to create a timeline of events, in chronological order, so that you can answer the lawyer’s questions in a clear and organized manner.
If you have a family member or friend who knows a good employment lawyer, that can be a great place to start. You should look up the lawyer’s website, if possible, to get an idea of his or her experience and to confirm that he or she represents plaintiffs in wrongful termination lawsuits.
You can also use Nolo’s lawyer directory to find reputable lawyers in your area; you can search for lawyers by area of practice and geographic location. State bar associations and lawyer referral programs can also be a good resource. (For more information, see Finding a Lawyer For Your Wrongful Termination Case.)