Will a Lawyer Take Your Employment Discrimination Case?

Find out how a lawyer will evaluate your potential employment discrimination case.

By , Attorney · Seattle University School of Law

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.

What is Employment Discrimination?

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.

Protected Status Under Federal Law

Federal antidiscrimination laws prohibit discrimination against employees based on:

  • race
  • sex
  • pregnancy, childbirth, and related conditions
  • sexual orientation
  • gender identity
  • age
  • national origin
  • genetic information
  • disability
  • military status, and
  • religion.

These protected categories only apply if your employer has at least 15 employees (at least 20 employees for age discrimination).

Protected Status Under State Laws

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).

Many states also cover employers with fewer employees than federal law does. Federal antidiscrimination laws generally apply to employers with 15 or more employees. In New Mexico, for example, employers with four or more employees are covered.

For example, some states prohibit employment discrimination based on marital status or veteran status. Some cities and counties also have their own antidiscrimination ordinances protecting additional categories, such as weight or parental status.

For information about state antidiscrimination laws, see Employment Discrimination in Your State.

How Lawyers Assess Discrimination Cases

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.

Do You Have a Protected Status?

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.

Were You Treated Less Favorably Than Other Employees ?

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).

What Evidence Do You Have?

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.

What Are Your Damages?

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.

Will You Be a Good Witness?

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.

Find an Employment 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.

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