If your employer has discriminated against you based on your race, age, gender, religion, disability, or another category protected from discrimination by federal, state, or local law, an employment discrimination lawyer can help you decide on the best way to address the discrimination and recover damages you are entitled to. For more information on pursuing an employment discrimination claim, read Nolo’s article, Suing for Harassment or Discrimination.
A handful of federal laws prohibit employers from discriminating against employees based on the following “protected categories”:
In addition, many states and cities have their own antidiscrimination laws, some of which prohibit discrimination against employees based on additional protected categories (such as sexual orientation or marital status). State laws may also offer greater protections for workers. For information about state antidiscrimination laws generally, see Employment Discrimination in Your State.
Your employment discrimination lawyer will determine what federal and/or state laws apply in your situation.
Once your lawyer figures out what federal or state laws your employer may have violated, she or he will evaluate the available and admissible evidence of the employer’s acts, and assess what damages (losses or injuries) you have suffered as a result.
Your lawyer will ask you to provide the following:
As your lawyer will explain, the type and amount of damages you can recover for employment discrimination are determined by law. Your lawyer’s job is to know what damages are available and ask you the right questions to make sure you are requesting compensation for all your losses.
After assessing your evidence and calculating your approximate losses, your lawyer will talk to you about the courses of action available to you to address the discrimination and seek recovery of your damages. Your options are determined by the specific law(s) your employer violated, the strength or weakness of your evidence, and the amount of your losses. Some of the common courses of action are outlined below.
One option is for your lawyer to send a letter to your employer (called a “demand letter”), describing the laws the employer violated and the losses you have suffered. The primary goal of a demand letter is to find out if the employer is interested in negotiating an informal resolution of your claims. This option is a common first step in the litigation process and is particularly useful where your damages are modest or liability is clear. The advantage of this option is that, if negotiations succeed, you can reach a resolution and get a settlement payment without the expense and trouble of filing a lawsuit.
If informal negotiations are unsuccessful, you may want to move forward with filing an employment discrimination lawsuit. However, you can’t do so right away—you must first file a complaint with the state or federal agency that is charged with enforcing antidiscrimination laws, such as the Equal Employment Opportunity Commission (EEOC). If the agency denies your claim, you can file a lawsuit (in some cases, the agency will give you permission to go right to court by issuing an immediate “right-to-sue letter”). Some cases are resolved at the agency level, through decisions or settlements.
Your lawyer will also discuss the option of filing a lawsuit. She or he will describe the litigation process, from filing the complaint to the discovery phase (when depositions are taken and documents are subpoenaed) to the trial itself. Your lawyer will also explain her or his attorneys’ fees and the expected costs (such as filing fees, deposition expenses, and expert witness fees). Even if your lawyer takes your case on a contingent fee basis (meaning she or he gets paid only if you do), you may have to pay related litigation costs. The other options (demand letter and mediation) do not carry the same amount or type of costs, if any.
Mediation is another option for pretrial resolution of your discrimination claims. Mediation can happen at any stage in the process, including before you file a lawsuit or agency complaint. More often, though, mediation takes place after an agency complaint or lawsuit is filed.
Mediation is similar to the informal negotiations between your lawyer and your employer’s lawyer mentioned above, but it is a bit more formal and involves a third party—the mediator. The mediator is usually a retired judge or experienced employment lawyer who facilitates settlement discussions, often by “shuttling” between the parties to convey offers and counteroffers. You and your employer will both attend the mediation with your respective lawyers, but you will be in separate rooms and the mediation is not binding. A settlement can be reached only by agreement of all parties at mediation: in other words, no agreement, no settlement. The mediator cannot take any action that binds the parties without their agreement.
The options described above are not mutually exclusive. Your lawyer may recommend certain courses of action at different times, or may recommend multiple actions at the same time. Whatever you and your employment lawyer decide, your lawyer will explain each stage of the process to you and the decisions you need to make along the way.