Americans often believe that discrimination in the workplace no longer occurs because of the legal protections that employees have today.
However, this understanding could not be further from the truth.
In fact, discrimination in the workplace happens every hour of every day, but the difference today is that discrimination in the workplace often takes more ambiguous or concealed forms, requiring circumstantial evidence to prove its existence.
This article discusses different forms of evidence that you can use to prove your employment discrimination case.
Remember that this article should not be substituted for legal advice.
Contact an experienced employment discrimination attorney at Hutchison & Stoy, PLLC, if you have any questions about this article.
What can I use as Evidence in an Employment Discrimination Case?
There are many different things that you can use as evidence in an employment discrimination case.
The list that you will find below does not represent all of the potential evidentiary forms that can be used to prove your employment discrimination claims.
Rather, this list is meant to provide you with some examples of things that you can use in your case.
Of course, you should contact an experienced employment discrimination attorney if you have questions about what type of evidence should be used in the particular circumstances of your case, as they do tend to differ from cause of action to cause of action.
One of the hardest things about proving an employment discrimination case is the fact that many employment discrimination cases are based on circumstantial evidence.
Circumstantial evidence is quite different from direct evidence.
In 2017, it is extraordinarily rare for an employer to tell any employee that he or she is being terminated, demoted, etc., because of their race, religion, sex, or other protected distinction under the law.
Instead, employers attempt to provide different reasons for termination, such as subpar performance, violations of the employee handbook, etc.
Many of the examples below provide circumstantial evidence to help you support your claim of employment discrimination.
Keep in mind, a substantial percentage of cases do not actually go to trial; however, collecting this evidence can be important even if your case does not go to trial, because you can use this evidence during negotiations and the mediation process as leverage.
If your employer claims that you were terminated due to poor performance, you should collect your past performance reports to use in your employment discrimination case.
If you have never had a poor performance report, this can be used to show that your employer’s claim is false and not based on any recorded performance issues.
Indeed, your performance reports will show that you were completing your job in a satisfactory or exceptional manner.
Timing of Discriminatory Adverse Employment Actions
The suspicious timing of your termination, demotion, wage/hour decrease, or other adverse employment action can also be used to show that you were discriminated against.
For example, if you told your employer that you were pregnant, and then you were terminated a week later, you may be able to use the suspicious timing of the termination as evidence of employment discrimination.
Communication with your Employer
If you believe that you were terminated from your employment or that you suffered an adverse employment decision due to illegal discrimination, it is crucial that you save communications with your employer and/or the discriminatory actor.
Make sure to get details about your termination in writing so that the trial of your case is not a “he said, she said” debate.
You should also print and save any emails or other types of communications that you have that could show discrimination by your employer.
This simple item of evidence will help you more than you would think!
Employers will often attempt to state that an employee was not living up to expectations.
If you have your job description, you can show that you were completing each task that was assigned to you in the job description in a satisfactory manner.
You can also introduce evidence of your qualifications to show that an employer/potential-employer wrongfully passed you up for a promotion or job offer.
This can also be used to show that your employer replaced you with someone who was less qualified for the job based on discriminatory reasons.
Your own Testimony
It often surprises people that their testimony during trial can be one of the most important elements of proving your case.
In order to prepare for testimony in an employment discrimination case, you should write down an account of the discrimination that you were facing at work in as must detail as humanly possible.
Write down your experiences with your supervisor and the company management or human resources, as this information could prove to be invaluable when you take your case to trial.
Remember that it may not be the best decision to testify in court, so you should discuss your particular situation with an attorney.
An experienced attorney will be able to help you determine whether testifying at trial is in your best interest.
Statements from Witnesses
Although cliché, witnesses can make or break a case.
Jurors can often connect to the statements of certain witnesses when they are determining whether discrimination occurred as the plaintiff alleged.
Witness testimony can also help break the “he said, she said” nature of employment discrimination cases.
Often, unfortunately, these types of cases put the word of the employer against the word of the employee.
If you find yourself in this situation, witness testimony can be very helpful to sway the jury in your favor.
Medical Information & Protected Class Information
If you have been a victim of discrimination based on a recognized disability, you will need to show that you have such a disability.
This can be shown through medical documentation and notes from medical care providers.
In other words, you can introduce your medical records to support your claim.
You can also have your doctor (or an expert witness) testify about your medical condition.
If you are claiming that you were discriminated against based on your membership in a protected class, you will need to prove that you are a member of the protected class.
This will often be very easy to prove, and the parties may stipulate to this fact.
Documentation Relating to Your Termination
You may need to introduce documentation relating to your termination during your employment discrimination case.
For example, if your employer claims that you were terminated because of excessive tardiness, you should request documentation of the tardiness from your employer.
This will help you prove that the employer’s reason for your termination was not actually the reason for your termination.
Remember that one of the best things that you can do for your employment discrimination case is to hire an experienced employment law attorney.
Unfortunately, your employer may not take you seriously if you attempt to represent yourself in an employment discrimination case.
Once you have an experienced employment discrimination attorney on your side, you will be able to show your employer that you are serious and ready to fight back.