As with most lawsuits, the difference between winning and losing a case of employment discrimination is the evidence. No matter how severe the discrimination or harassment, if you have no evidence or witnesses to prove your case, you’re asking a jury to make a decision largely based on “he said, she said” testimony. Although mediators, judges, or jurors will sometimes believe your story without other evidence, the more evidence you can show them, the greater the likelihood you will succeed. The question is: how do you prove your case?
Don’t keep quiet.
If you are experiencing harassment, discrimination, or a hostile work environment at the hands of coworkers, you need to make a complaint to your supervisor. If it is your supervisor causing the problems, you need to complain to their supervisor, and so forth. Do not wait until the harassment becomes unbearable, either; as soon as you believe you are being targeted or treated unfairly, start the process. All too often, people are afraid of retaliation or rocking the boat, and don’t complain until they’re on their way out the door. This can be a huge mistake. Not only does making a complaint give your employer the opportunity to fix the problem, it gives you an opportunity to begin building your case if your employer fails to act. There are several important things to keep in mind:
- Know your company’s policy for handling complaints. These policies can usually be found in your company handbook or by asking management. Some companies have very detailed harassment and discrimination policies in place that tell employees who to complain to, how to file a complaint, etc. Even though failing to follow the policy to a “T” is not necessarily a case-killer, it helps if you follow your company’s policy. Not only does this ensure your complaint is more likely to be handled properly, it helps show that you are serious about your complaint.
- Always make your complaints in writing, preferably with a way to prove you filed the complaint. Email your supervisor, manager, or human resources person the complaint or a recap of your complaint. Ask the person you file the complaint with for a date-stamped or signed copy of your complaint. Or, mail the complaint to your employer via certified mail with a return receipt.
- Follow up. If you file a complaint and nothing is happening, do not be afraid to ask for updates on your situation, particularly if there doesn’t seem to be any improvement in the problem. Your follow up should be in writing, if possible, as should get your employer’s response in writing.
Discrimination and harassment cases often take a long time from the time of the first incident to the day you testify in court. As a result, it is very easy to forget important information, like dates, times, names, and the content of conversations. The easiest way to combat this it take good, detailed notes as things happen. Don’t wait and try to remember important information. Take a note shortly after something happens. When taking notes, always remember the “who, what, when, where, and why”:
- Who: Not just who made a remark, who did something, or who you spoke to, but also any potential witnesses to an event. This is often one of the most important notes to take, as it helps identify witnesses that need to be talked to later, and who might be able to testify about your case.
- What: Specifically what was said or done, what happened, what else was happening at the time, etc.
- When: Definitely make a note of the date and, if possible, the time.
- Where: Where, specifically, were you when the event took place? Standing at someone’s desk? At the back of the store? The more detail, the better.
- Why: Why did something happen? Did you go talk to a coworker about a project at work that resulted in the event? Did you make a remark that set someone off?
Aside from keeping copies of your complaints and notes of incidents, keep everything that might be important to your case. Copies of pay stubs, write-ups, termination documents, company handbooks or policies, emails, letters, and so forth. However, be mindful of taking documents that you shouldn’t take. For example, confidential information of third parties (like medical records), trade secrets (like customer lists or secret recipes), and other proprietary information (like the company’s internal financial information, lists of suppliers, or contracts) should be left where they are. Not only do you run the risk of being terminated, you may also end up in hot water if you violate laws like HIPAA or disclose the company’s trade secrets.
In addition, be familiar with recording laws in your state and, if necessary (and legal in the circumstances), record conversations or incidents. For instance, the general rule in Missouri is that only one party to a conversation must have knowledge of or consent to the recording. There are exceptions to this rule, such as if you are recording a phone call with someone outside the state, or if the other party has a reasonable expectation of privacy. However, when appropriate, recordings can be incredibly helpful to your case, as it may help prove that someone said something that they would otherwise deny.
Remember, when it comes to proving your case, evidence is everything, and early action is crucial. Even though you may fear retaliation or want to avoid conflict, waiting is usually not the best option. Not only does it hurt your case, but there may be others in your situation who are not as assertive or proactive – but by standing up for yourself, it may help deter your employer from continuing the bad behavior. As always, if you need advice or assistance in how to preserve evidence for a potential employment case, or have a case to pursue, don’t hesitate to contact one of the Missouri employment attorneys at BCU Law Offices. We serve much of the state, including the Kansas City, Springfield, and Joplin areas, and everywhere in between.