Guide to Proving Employment Discrimination and Filing a Lawsuit

In 1964, President Lyndon Johnson signed into law Title VII of the Civil Rights Act. It prohibits discrimination in the workplace based on religion, color, race, sex, or national origin. Title VII cleared the way for those who suffer employment discrimination to file lawsuits. Since then, federal courts expanded discrimination to include age (40 or over), disability, union activity, and pregnancy.

To deal with claims of discrimination in the workplace, the federal government created the Equal Employment Opportunity Commission (EEOC).

Since 1964, all 50 states have enacted their own employment discrimination laws. Many of the state laws are similar to the federal civil rights laws, but offer additional protections including job discrimination based on marital status, sexual preference, or disability. These state discrimination laws are the Fair Employment Practice Acts (FEPA).

You cannot file an employment discrimination lawsuit without receiving written permission to do so from the EEOC or a FEPA agency. To receive permission, you must first make your way through the EEOC or FEPA administrative process.

In this article, we cover:

  • How to successfully navigate your way through the EEOC and FEPA processes
  • The evidence you need to support your job discrimination claim
  • Obtaining a “right to sue” letter, and exceptions
  • Damages (what you’ve lost due to the discrimination)
  • The role of attorneys

State Fair Employment Protection Acts (FEPA)

If you believe you suffered discrimination in the workplace, you can choose whether to file your claim with the federal EEOC or under your state’s FEPA. Sometimes, filing under your state’s FEPA is necessary. This is especially true when Title VII doesn’t cover the type of job discrimination you suffered, but your state’s FEPA does.

For example, Title VII doesn’t cover discrimination based on medical condition, arrest record, or military status. The state of California does. Other states have similarly extended types of discriminatory practices. Visit your state’s FEPA website to find the types of prohibited discriminatory practices, filing processes, deadline information, and more.

Find your state FEPA agency here.

You can only have one job discrimination claim. To avoid confusion, the EEOC and FEPA make it easy to choose where to file. If you choose to file your claim under Title VII with the EEOC, and your state’s FEPA also covers the same type of discrimination, the EEOC will send a copy of your claim to your state’s FEPA agency. While your state’s agency will retain a copy of your EEOC complaint, the EEOC will officially handle your claim.

If Title VII doesn’t cover your type of job discrimination but your state’s FEPA laws do, you must file your claim with your state’s FEPA agency. If you try to file it with the EEOC instead of with your state, and Title VII doesn’t cover your type of job discrimination, you’ll waste a lot of time and energy. The EEOC will see Title VII doesn’t cover your type of discrimination and will dismiss your claim.

Equal Employment Opportunity Commission (EEOC)

Filing your employment discrimination claim with the EEOC requires an understanding of how their claim process works. Knowing the requirements helps avoid unnecessary delays and possible dismissal of your claim.

If you choose to file with the EEOC, you must do it within 180 days after the discrimination occurred (300 days if you filed under your state’s FEPA). You can file your claim in person at your local EEOC office, by telephone (800-669-4000 or 800-669-6820), or by mail. The EEOC does not accept job discrimination claims online.

Find your local EEOC office here.

To begin the process, you first have to complete the EEOC’s questionnaire. You can also request a copy of the questionnaire by calling the EEOC’s 800 number. After filing the questionnaire, an EEOC representative will contact you within 30 days to discuss your claim and decide whether it’s sufficient to proceed via a “charge form” the EEOC provides.

Remember, if the type of discrimination you suffered doesn’t fall under one of the prohibited types listed in Title VII, but instead falls under your state’s FEPA prohibitions, file with the state. Make sure you sign and date the questionnaire. Do not omit any required information on the form. If you do, the agency may stop you from proceeding to the next step in your discrimination claim.

Proving an Employment Discrimination Claim

To prove an employer discriminated against you, you need sufficient evidence. Just saying “They wrongfully demoted me,” or “I’m pretty sure she fired me because I got pregnant” isn’t enough. You must substantiate your claim with legitimate evidence. The evidence you gather becomes the basis of your formal EEOC or FEPA claim and eventually helps to fill out the charge form.

1. Begin with a journal. You don’t need anything fancy. Even an inexpensive school composition book will suffice. Write down your contact information, including your name, address, home and cell phone numbers, and email address. You also need all the contact information about your employer you can gather, including the company website if there is one.

2. Write down a detailed description of the discrimination. Include relevant dates of discriminatory action against you and the nature of the discrimination. Make sure you note in your journal why you believe your employer discriminated against you and the specific type of discrimination (found in the EEOC’s list of prohibited behavior). The list includes discrimination because of religion, color, race, sex, national origin, age (40 or over), disability, union activity, and pregnancy.

If you believe the discrimination falls under more than one of the prohibited types, list them all, as well as the underlying circumstances. You need the same information when filing a FEPA claim.

3. Speak with fellow employees. Ask if they would agree to speak with an EEOC or FEPA representative during your claim investigation. If so, write down their names and full contact information. If possible, ask whether they would help by writing down why they believe your employer discriminated against you, and any underlying facts to support their beliefs.

Don’t worry about notarized or sworn affidavits. At this stage, that’s not necessary. Just make sure your witnesses sign their statements on each page and date them.

Because federal and state laws about recording conversations of people are varied, and violating one of those laws can subject you to criminal penalties, don’t do it without consulting an attorney.

“Right to Sue” Letters

Once someone investigates your discrimination claim, you’ll receive one of two responses. The agency will either dismiss your claim, or decide it’s legitimate with sufficient evidence to support an employment discrimination action. If your claim is sufficient, you’ll receive a “right to sue” letter.

When you receive an EEOC right to sue letter, you have 90 days to file your employment discrimination lawsuit. After that date, you’ll be barred from continuing. (Check with your local FEPA office to determine your state’s deadline for filing a lawsuit.)

The agency will contact your employer and, if appropriate, ask him to submit to mediation instead of using a right to sue letter. You and your employer can agree to mediation if you choose.

Exceptions

If you’re filing an age discrimination claim under Title VII, you don’t have to wait to receive a right to sue letter.

If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge form with the EEOC or wait to receive a right to sue letter. Instead, you can go directly to court and file your lawsuit, provided you file it within two years from the date the discrimination took place (three years if the discrimination was willful).

Compensation (Damages)

The type of compensation, or “damages” you can hope to recover from your employment discrimination claim include back pay, reinstatement, promotion, or other reasonable accommodations relevant to the type of losses the discrimination caused.

“Reasonable accommodations” is another way of saying you may also receive a small sum of money in addition to back pay, reinstatement, or promotion. Monetary awards in individual job discrimination suits are normally quite low, so don’t expect to receive very much if you win.

Normally, large amounts of money, including punitive damages, are only for class action employment discrimination lawsuits. Class action discrimination suits are almost exclusively filed against large corporate employers. If there’s a class action discrimination suit against your employer, you may be able to opt-in. “Opting in” is the legal term for joining a class action suit.

The Role of Attorneys

There’s no doubt employment discrimination lawsuits require representation by an attorney with substantial experience in employment/labor law. It’s virtually impossible to represent yourself in a job discrimination lawsuit. If it’s an EEOC discrimination claim, you have to file your lawsuit in federal court. If you file a FEPA lawsuit, it will be in state court.

Either way, the trial process will be way over your head. Just the act of filing a discrimination lawsuit is a complex matter. Many local attorneys without substantial employment discrimination experience won’t even take these cases. There’s too much opportunity for error.

Most employers accused of discriminatory employment practices immediately hire legal representation. This means you’ll be going up against an aggressive and very goal-oriented attorney. If the EEOC or FEPA agency gave your employer a chance to mediate, and he refused, you can be pretty sure he won’t settle your lawsuit. It will end up in a trial in front of a jury.

Moving Forward

Unfortunately, discrimination in the workplace is still common. Often, the only recourse is to file an EEOC or FEPA claim. Some savvy employers who practice discrimination are well-versed in hiding their discriminatory practices. To succeed, you have to gather real evidence supporting your allegations.

It’s important to remember the EEOC and state FEPA agencies are not employee advocates. In other words, these agencies aren’t necessarily on your side. They’re neutral, with the responsibility to investigate claims and do everything possible to identify discriminatory practices and eliminate them. These agencies are justice-oriented. They will just as quickly dismiss a claim as support one. It all depends on the evidence.

If you’re sure you were the subject of job discrimination, then go ahead with your claim. If you’re not sure, visit with several experienced employment law attorneys to learn whether they think your claim has merit. If so, an attorney may accept your case and take over its investigation.

The attorney will help prepare the required questionnaire and charge form. Her guidance will give you the best chance of receiving a right to sue letter. From there, your attorney can file a lawsuit, whether state or federal.

Once she files suit, your attorney can use pretrial discovery rules. She can take the depositions (recorded, sworn statements) of your employer, fellow employees, vendors, and others who may have first-hand knowledge of what happened.

She can also subpoena your employer’s records, including personnel files of past and present employees, management notes, office memoranda, and your employer’s emails. Because attorneys normally handle these types of lawsuits on a contingency basis, you won’t have to pay your attorney any fee until and unless she wins your case in court.

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