Three Reasons to File a Discrimination Lawsuit: When to Sue is the Right Choice
Why would you file a workplace discrimination or harassment claim? You are a peace-loving person who just wants to do your job and go home to enjoy your family. Also, you ask yourself, how can I prove it?
There are three reasons to file a discrimination case:
1) Your efforts to engage in early dialogue and resolution of your employment grievances have come to a standstill despite your best efforts to be transparent and reasonable;
2) You know that the company treated you unfairly by deciding to fire you, and you strongly suspect, even though you cannot identify it, that it was because you were an older worker, or that you took time off for a while. serious health condition, or because you were not a member of the “old men” club.
3) You have obtained expert legal counsel who has informed you of the strengths and weaknesses of your case and explained it directly to you. His questions about the financial costs and the risks of losing were answered candidly and he is ready to make the investment.
This third reason includes an assessment of what you have to prove in a discrimination case. The fine point here is this: indirect, circumstantial evidence is enough. In other words, extracting an admission or obtaining a private email or note stating a discriminatory reason for firing someone is not a requirement of the case.
The reason is practical: discrimination is rarely a source of pride for an employer. The manager making the discriminatory decision is likely to be unaware of his own bias, or very hesitant to admit it to himself or anyone else. The paucity of direct evidence means that many actual cases of discrimination would never be filed or proven, and therefore discrimination at work would go unchecked.
As a result, the courts have designed the following basic elements of a discrimination case: a) that you are in a “protected” category; b) that he was doing his job satisfactorily; c) that he had work to do; d) that someone outside of your “protected category” took over your job responsibilities, and d) that you have suffered financial and/or emotional harm as a result.
It is that simple and that incomplete. The burden of proof has been met, but the employer can pass that test with its own evidence that the reason for the termination was a business necessity. That burden is easy enough to meet.
The game changer in a discrimination case trial is showing that the reason is not just a lie, but probably a lie intended to cover up a discriminatory motive. Are we back where we started with a direct proof requirement? No. You just need some additional evidence to substantiate the discrimination. For example, a manager may have made an offhand comment like “Bob, you seem to be slowing down. When are you going to retire?” Or maybe there’s an email that refers to the need to recruit new youthful energy into the organization. These are not “straight” statements, but they are relevant to the issue of discrimination, and courts have held so.
In conclusion, you would file a lawsuit if your employer is stubborn in refusing to settle despite the uncertainty of the “circumstantial evidence” that you or your attorney present informally in an effort to reach an early settlement. As the case progresses, witnesses are questioned, and documents are collected, the employer may realize the risk of a major verdict that it could have avoided early in the process by hearing reason.
