If you have evidence that you were treated differently based on any of the categories protected by the antidiscrimination laws, an employment lawyer will very likely want to meet with you about a possible case. In this article, we discuss how a lawyer would assess your employment discrimination case and decide whether or not to take your case.
An employer discriminates against an employee by treating him or her differently based on his or her “protected status.” A protected status is one of the categories protected by the state and federal antidiscrimination laws.
Federal antidiscrimination laws prohibit discrimination against employees based on:
State antidiscrimination laws vary and some cover additional categories that the federal laws do not protect (although no state may protect fewer statuses because the federal laws apply in all states). For example, some states prohibit employment discrimination based on marital status, sexual orientation, and gender identity. Some cities and counties also have their own antidiscrimination ordinances protecting additional categories, such as weight or appearance. For information about state antidiscrimination laws, see Employment Discrimination in Your State.
You may believe that you experienced employment discrimination, but not all unfair treatment is illegal. The law is quite specific about what qualifies as illegal employment discrimination. Here are the key facts a lawyer will consider when assessing whether you have a legitimate claim of employment discrimination and, ultimately, whether the lawyer wants to take your case.
The lawyer will want to be sure that you, in fact, fall within a protected class. This may be the simplest element of the analysis. For example, you may believe that your employer discriminated against you because of your age. But, if you’re not over 40, you are not protected against age discrimination. The analysis can be more difficult though, such as determining whether you have a mental or physical impairment that qualifies as a “disability” under federal law.
A female employee who is disciplined and feels targeted because of her gender would not have a very strong case if men received similar discipline for engaging in similar conduct. An employment lawyer will explore this element of your possible case to figure out if you were treated differently from employees who don’t share your protected status.
And, if you have evidence that other employees who do share your protected status were treated less favorably than employees without protected status, that’s information that the lawyer will need to know as it may support your case. If many people with your status suffered discrimination by the same employer, an employment lawyer may assess whether there is a potential class action (meaning that your case would be combined with the similarly situated employees).
Although you may be sure that your employer discriminated against you, unless you can prove it with evidence, you don’t have a case. But you don’t need the proverbial “smoking gun” of an employer calling you a racial epithet or saying old people have no place in the company. Any evidence that shows one aspect of your case (your protected status, the different treatment, etc.) may cumulatively make your case strong. Of course, any evidence that shows that your employer or someone acting on behalf of your employer (such as your manager, a human resources representative, or a company executive) harbored any ill feelings toward people with your protected status is important evidence to share with the lawyer.
Your evidence may take the form of witness statements (from those who have knowledge of your differential treatment or experienced similar discrimination themselves), documents (such as your personnel file, disciplinary notices, and performance evaluations), visuals (such as drawings, cartoons, or photographs that display racial or sexual hostility), or other forms. Be sure to bring your evidence, including a list of possible witnesses and their contact information, to the meeting with the lawyer. The more organized your evidence is, the easier it is for a lawyer to evaluate your case.
In a civil action, such as a lawsuit for employment discrimination, the main form of recovery is money damages. To win damages, it’s not enough to prove that employer acted illegally; you also have to prove loss or injury as a result of that behavior. The lawyer evaluating your case will assess the losses that you have suffered. In an employment discrimination case, the types of damages that an employee may recover include lost pay, lost benefits, emotional distress damages in certain cases, and punitive damages (intended to punish the employer) when available. You might also be entitled to collect attorney fees from your employer if you win.
You are your most important witness in an employment discrimination case. An employment lawyer will also size you up to see how you will present as a witness. The lawyer will evaluate how clear, concise, organized, presentable, and honest you appear. This is an important part of the process because a jury and judge will evaluate you in the same way. Having a credible, sincere demeanor can go a long way in convincing a judge or jury of your position. You’ll want to be forthright, truthful, and calm in discussing your case with the lawyer.
You may have a very strong employment discrimination case, but if you don’t gather your evidence and if you can’t describe it in a clear, coherent way, an employment lawyer may not take it on. Your organized, understandable presentation will make it easier for a lawyer to evaluate your case and help you out.