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Facing discrimination at work can be a defeating experience and we know from firsthand experience that even the idea of fighting back can feel overwhelming.
That's why we've written this guide reviewing 5 actions you can take today that are not only simple, but can make the difference between whether or not you have the option to pursue justice if you decide you want it.
1. Communicate Concerns to HR and/or Leadership In Writing
It's important to notify your leadership and HR, so they are aware of your situation and the ongoing discrimination. Unfortunately, you may find that the warnings you heard about HR "not being your friend" are true - many of us do - but you may also be surprised and find they do step in, take action and rectify the situation. Perhaps, they'll refuse to acknowledge your concerns are valid, but they'll at least be willing to compromise by moving you to another team.
Unfortunately though, for many of us, we find that leadership and HR are unwilling to even admit a potential problem exists and as a result, they're unwilling to do anything to help. This is why it's also important to follow-up any conversation you have by restating your concerns in writing and sending them to whoever you spoke to. It is possible, even likely, that you won't receive a response, but now they can’t deny that they were made aware of the situation, had the opportunity to take action and chose not to.
Writing also gives you the opportunity to ensure you relay your concerns in a concise and direct manner. When first verbalizing our concerns, it is very common to include additional, unnecessary context, including our own feelings on what happened. This is normal and extremely difficult to avoid, which adds an additional benefit to putting your concerns in writing as you can use that writeup to focus only on the facts so no important incidents get lost in the relevant, but not directly important details. If you need help, JustiProof's AI can analyze your summary of an incident and suggest changes that help you raise your concerns effectively.
2. Begin Capturing Evidence Immediately
Starting today, capture the details for any incident where you believe a discriminatory or retaliatory action occurred, including what happened, date of incident and who was there. When possible, we recommend capturing these details immediately after the discriminatory or retaliatory incident as this will ensure you capture the information when the details are most clear in your mind. To make this step easier, JustiProof includes a voice-to-text feature so you can save the details when they’re fresh in your mind and if necessary, return when you have more time to remove unnecessary context or add additional details (something our AI can also help with). If you’re in a state that has single-consent recording laws you can also record relevant conversations without needing to ask for the other person’s consent, though it’s important to be certain this is legal where you live before you do - we have a map that will help with that within JustiProof.
You should also begin capturing screenshots of messages and copies of important documents (emails, performance reviews) relevant to any incident that occurs beginning today. It may also be useful to go back and capture details and evidence from previous discriminatory or retaliatory incidents, but if this feels too daunting, just start with what happened today.
Your goal is to establish a pattern of behavior that demonstrates discrimination and retaliation, and if it’s ongoing, you may be able to establish the pattern without past incidents and evidence. Plus depending on how long ago they occurred and what state you live in, the incidents may already fall outside of the timeline for which you can pursue violations (see step 5) in your State.
Whatever you do, begin capturing evidence today and trust that you can figure out what to do with that evidence or work your way back through your past incidents in the future.
3. Save Your Evidence Somewhere, Anywhere Other than Work-Owned Devices
Evidence captured and saved only on your work owned devices might as well not exist if you cannot access it when and if you are ready to seek external help. We know people may find this step intimidating as these resources are owned by the company, but we have also spoken to countless victims of discriminatory or retaliatory termination who realized too late they had no path to getting justice. These people feared the consequences of being caught saving evidence that proved they were being discriminated against, so they ‘played it safe’ only to find they were terminated abruptly and suddenly anyways. Once terminated, it no longer matters if evidence existes if you no longer have access to prove it does to a lawyer, government agency or judge.
There is always the option that you capture evidence and still choose not to fight - that’s your choice and there are many valid reasons for making this choice - but at least then it will be you who chooses not to fight vs. having the option to fight also taken from you.
As an additional note, it is true that anything you capture should be treated as sensitive, confidential material. As long as you do not share these resources with external parties or post them publicly, it would be difficult for the company to take action against you. This is especially true if the document exposes the company’s own wrongdoing and/or the document is only relevant to your personal situation (e.g. performance review documentation, email discussing your performance improvement plan). If you are worried about a particular document that demonstrates discrimination or retlaition, but also includes sensitive information about the company or others, we’d recommend consulting with an attorney.
4. Check for an Arbitration Agreement
Many companies require employees to waive their right to sue the company as a condition of employment through a clause called a mutual arbitration agreement. Arbitration agreements remove your right to face your company in a court of law and instead force you into private arbitration where decisions are final, binding and tend to favor employers. It is also becoming increasingly common for these agreements to block employees from filing collectively through class-action lawsuits.
Unfortunately for many of us, we lack the legal expertise to recognize these agreements for what they are at the time of signing and as a result, we learn too late that our only recourse is through private arbitration. However, even if we do realize what we are signing, many employees can’t afford to reject the agreement if it is a requirement for employment, which is often the case.
Learning you have one is not a dead end, but since it impacts what options you’ll have, it’s important to know either way. If you want to check, we recommend starting with your new-hire paperwork and searching for the word “arbitration.” If you don’t see one, you should continue to check your employee handbook, updated employee policy agreements or any other legal document your company may have had you sign to accept or acknowledge receipt of a document.
And no matter what these agreements say, the one path you will always have is filing with a state or federal agency in charge of enforcing civil rights laws.
5. Look Up Filing Deadlines for Your State
The Federal agency in charge of enforcing civil rights laws is the Equal Employment Opportunity Commission (EEOC). However, it is important to be aware of the filing deadlines as the EEOC only allows you to file discrimination claims for incidents that have occured in the last 180 days (six months) unless the claims are also covered by state or local anti-discrimination laws based on where you live. Not sure what the laws are in your state?
If the claims are covered, you will have 300 days to file after a discriminatory act has occurred, but this is still only ~10 months. In addition to the EEOC, each state has an agency in charge of enforcing civil rights laws. Some of these agencies are far more generous with their filing deadlines, for example California gives employees three years to file as long as the most recent incident occurred within the last year, while others align closer to the EEOC policies, such as Texas which also gives employees 180 days. However, while the deadline is shorter for TX, the existence of state anti-discriminations laws does extend your EEOC filing deadline to 300 days.
Being aware of these dates can be the difference between having a chance at getting justice or being blocked from justice entirely, so it is important to identify what these deadlines are for your state as early as possible.
You deserve to be treated fairly at work— we know this fight is awful, but by putting in the minimal effort to complete these five steps, you’ll be giving yourself options for the future that you may not even realize you’ll want to have until it’s too late. And if you don’t end up wanting those options? Simply delete those files and move on.
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