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If you’ve never gone through the process of filing with the EEOC, having an employment lawyer on your side is your best shot at winning. However, we know not everyone can find an employment lawyer to take their case on contingency and many employees can’t afford to pay a lawyer out of pocket.
If you find yourself in this situation and are still considering filing with the EEOC it’s important to remember that having a lawyer doesn’t change anything about your claims or the evidence you have, only how that information would be presented. A lawyer is just more experienced and knowledgeable about what it takes to prove a discrimination case and how to frame a narrative to tell that story.
So while we acknowledge that nothing can entirely make up for having a lawyer in your corner, we’ve written this post to provide our top 7 tips for setting yourself up for success with the EEOC when you don’t have a lawyer.
File When You Can Link The Discrimination to Direct Financial Harm
It’s harder to get support for cases without direct financial harm, because the path to recovery is less clear. While it is true that compensatory and punitive damages are available in discrimination and retaliation cases, recovery is not as certain or as clear-cut as showing lost front-pay or back-pay. We cover the importance of this in more detail in Do I Have A Discrimination Case?
Don’t File Before You’ve Escalated Internally
The EEOC takes action against employers, not individuals. Because of this you need to raise your concerns with HR or leadership no matter how uncomfortable you feel about it. Escalating internally allows you to demonstrate that you tried to get help for your concerns and the company itself failed you.
And who knows, maybe you’ll be lucky and find yourself in the rare situation where HR or leadership steps in and takes action without ever having to endure the stress of filing.
Don’t Overlook the Importance of Formatting and Presentation
Many employees file with the EEOC believing it’s enough that their claims are valid or that they have evidence, but they fail to realize how important presentation is.
Why is presentation important? Because the EEOC states that the burden of proof has two parts (Section 602.7), the burden to produce evidence (which both you and the employer are responsible for) and the burden of persuasion (which you are fully responsible for).
Unfortunately the burden of persuasion is much harder, because if you’re not an employment lawyer and you’ve never fought discrimination before, you probably have no idea how to present the facts and evidence in a way that persuades an objective, third-party.
While this doesn’t mean there’s no hope, it does mean you’ll need to figure out how to format your claims to be direct, clear, persuasive and easy to follow.
For example: it doesn’t matter if you have a series of emails that make it obvious bias played a factor in the opportunities you were given and another email that proves you were denied a promotion because of the limited opportunities you received if the investigator can’t find those emails or link them together in a sea of unrelated evidence.
If this makes you feel overwhelmed and anxious, you’re not alone. And that’s why we created JustiProof – so you can just focus on adding evidence and describing what happened for each incident and we’ll help you format and organize your claims in a way that is direct, clear and easy to follow, while still including all the necessary details of your claims.
Focus on What Matters Most First
Most employees tell their story in chronological order, but the problem is by the time you get to the true discriminatory incident - or at least the discriminatory incident you can act on - you’ve already lost the investigator among all the unrelated details.
It’s important to remember that the EEOC investigator is looking to answer four key questions when making a decision on your case:
Are you a member of a protected class?
Were you qualified or meeting expectations for the role or promotion?
What was the discrimination (paid less | denied the role | terminated | denied a promotion)?
Were others who were equivalent to you, but not part of your protected class, treated differently (paid more | hired | retained | promoted)?
Everything you provide should be formed around addressing these questions and you should always lead with the most recent incident that impacted you financially first. Typically when you structure your arguments from this starting point, you’ll find the discriminatory comments and assignments that came before the financial harm are best saved for later in your claims to further support your argument that the financially impacting decision was discriminatory.
Capture Evidence and Keep It In Your Possession
The best form of evidence is an audio recording, but you’ll need to verify you live in a single party consent state (Look Up Your State Laws with JustiProof), followed by written evidence (emails, direct messages, performance reviews) and then witnesses.
Unfortunately the hard truth is it doesn't matter if you were discriminated against, it only matters what you can prove. The reason why evidence is crucial is the EEOC states the burden of proof falls to the charging party (Section 602.7) - you as the employee filing claims - first.
This doesn’t mean your employer won’t be required to provide some evidence based on your claims alone, but you should assume they’re going to be selective in what they provide and ensure it fits their narrative that there was no discrimination or retaliation.
If and when they do this, you’ll lose your case if you have no evidence to disprove their position and what they’ve provided.
Expect Witnesses to be Unreliable
Witnesses shouldn’t be your only source of evidence, because there is no guarantee they will follow-through. No matter how adamant a friend or coworker is that they want to do the right thing, they may change their mind when the time comes for them to be interviewed. Even if your witness is assured they’ll remain anonymous, people will have doubts when their career and livelihood is on the line.
Beyond that, the EEOC investigator will be making a decision on how reliable and credible they think the witness is and this is entirely subjective. Maybe your investigator's personality clashes with your witness or maybe your witness just sounds extremely anxious and nervous, either way their statement may not end up holding as much weight as you need it to if they are the only evidence you have.
Don’t Miss Filing Deadlines
For employees in some states the filing deadline can be as short as six months. Make sure you know what those deadlines are, so you don’t lose your case based on a technicality.
If you don’t know what your state laws and filing deadlines are you can look them up with JustiProof.
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