.png)
Taking legal action against your employer can be intimidating, even when you’re confident in your legal right to seek accountability and recovery. The fear of retaliation, coupled with countless stories of civil rights agencies falling short, makes it understandable to want absolute certainty that your case is valid and will be taken seriously before moving forward.
Here’s the hard truth: no one—not HR, lawyers, or agencies like the EEOC—will investigate your situation to give you the validation you’re seeking. By the time you approach these resources, you need to already be confident that discrimination and/or retaliation is happening and have a solid case backed by facts and evidence.
So, how can you confirm you have a discrimination case if you’ve never done this before and aren’t an employment lawyer yourself?
In this post, we’ll share the questions you should ask yourself when validating the strength of your case.
Q1: Did Discrimination Result in Direct Financial Harm?
Unfortunately, because civil discrimination cases are primarily focused on financial recovery, most successful cases arise from employees who have suffered measurable financial damages as a result of discrimination. These damages could be the result of a termination, denial of promotion, or disparities in pay between members of a protected class and those outside it. The reason why this helps increase the odds of success is it gives attorneys or the EEOC multiple avenues to pursue recovery:
Back Pay: Wages or benefits lost due to discrimination.
Front Pay: Future earnings that are permanently lost as a result of discrimination.
Compensatory Damages: Out-of-pocket costs resulting from emotional or physical harm caused by discrimination.
Punitive Damages: Financial penalties imposed to punish the employer for breaking the law.
Both the EEOC and law firms receive more cases than they can possibly take on, so prioritization is necessary and potential financial recovery is one of the easiest and quickest filters to apply. This is why it’s harder to get support for cases without a clear financial value derived from direct discrimination harm. While compensatory and punitive damages can also be factored into the value equation, they will also be factored into cases where there is a path to additional recovery. This means that even with significant mental or emotional anguish caused from discrimination, it can be difficult to have your case prioritized above others.
Of course there are exceptions to this, particularly in cases involving sexual harassment, but these cases can leverage a criminal investigation to gather evidence and validate the discrimination claims prior to pursuing financial recovery. In cases where the discriminatory behavior involves only comments, inappropriate questions, or jokes, establishing employer wrongdoing can be much harder—especially if written evidence is lacking.
Still not feeling certain? JustiProof has a case validation tool that allows you to compare your claims to thousands of previous EEOC cases. This tool allows you to search for cases that align with your claims, helping you gauge the likelihood of success and strengthen your case preparation.
Q2: Can You Link the Financial Harm to Discrimination?
Simply being part of a protected class and experiencing financial harm does not mean you experienced discrimination. If you suspect discrimination, it’s essential to ask yourself why you feel it’s discrimination. Were you already worried about discrimination prior to the decision where you were financially harmed? What prior comments, behaviors, or patterns led you to worry about discrimination?
These questions are important, because favoritism is not illegal even when you are part of a protected class and usually if discrimination is a factor, employees had concerns before the financially impacting event. For example, as the only black man on a team, your boss can pass you over for promotion in favor of a white man who he likes talking sports with if he is also prioritizing this man over other individuals on the team including other white men, hispanic men, women, etc. In this scenario you may have known your boss preferred this particular white male, but if there were no other indicators of favoritism or preferential treatment beyond this one individual, it may just be bad leadership and favoritism.
That said, favoritism itself can be an early warning sign of discrimination, so there is continued nuance in these cases. For example, over a one year period the boss consistently gives the best projects to the white men on the team while you, a hispanic man and a woman have received the lowest priority projects. Even when these men are new hires or fail to meet expectations, they are given the benefit of the doubt and kept on top-tier projects. You’ve questioned the decision making process and asked to be given more challenging work, but have only received subjective, vague excuses in response. When the merit cycle arrives, a white man with less tenure than you is promoted for his ‘impactful work’ while your promotion is denied because of ‘lack of visibility.’ In this scenario, technically you, the hispanic man and the woman could all have a discrimination case, but your cases wouldn’t be equal. Perhaps the others did not question the project assignments and weren’t expecting a promotion, so they don’t have the evidence and facts necessary to build a compelling discrimination case.
And that last part is key, because it doesn’t matter if discrimination occurred if you can’t convince an objective third-party to believe it did. This is also why so few employees win their discrimination cases. In order to fight and win your discrimination case, you must have documented evidence showing a pattern of discriminatory or retaliatory behavior over months—or even longer—before experiencing direct financial harm. Equally important, is proof that you sought help from HR or leadership, who failed to take action in order to prevent the harm you’ve experienced as both law firms and the EEOC target employers not individuals.
Q3: Do You Have Evidence of the Discrimination?
Or more specifically: do you have evidence in writing, and is it in your possession?
In discrimination cases, the burden of proof lies with the employee. Employers will often conceal information that reflects poorly on them or attempt to manipulate the facts to fit their narrative. Knowing this, it’s crucial to secure and preserve any evidence your employer might conveniently “forget” or omit in their response.
If the evidence exists but isn’t in your possession, you have no way to prove it exists without pursuing litigation and compelling discovery. However, to do that, you’ll need to convince a lawyer or the EEOC to take your case—and that won’t be easy without any evidence supporting your claims.
The most valuable type of evidence is written documentation that supports your claims. This could include direct messages, emails, performance reviews, or—if you live in a single-party consent state—audio recordings.
Many employees claim they can’t gather evidence because every conversation was verbal and in truth, that’s no coincidence. Your employer knows they win any dispute relying solely on your word vs. your employers, because you own the initial burden of proof and you have none. That’s why we strongly recommend following up on verbal discussions with a written summary. For example, after a meeting, send an email summarizing your understanding of what was discussed and what concerns you have, if any. This forces your employer to either:
Confirm your understanding of events.
Respond with corrections or clarifications.
Ignore the email altogether.
If your employer ignores the email, that’s still okay. Their silence becomes part of the record, demonstrating they were made aware of your concerns, questions, or requests. This proof that they were made aware then shifts the burden of proof to them, forcing the employer to demonstrate what actions they took to address your concerns, if any.
The Final Hurdle: Share Your Discrimination Case
Even if you’ve suffered financial harm, can link it to discrimination, and have all the evidence to support your claims, there’s still one crucial hurdle: can you effectively communicate your case to a third party?
Many employees underestimate how challenging this step is. Because you’ve lived the experience, it’s clear to you what happened—but that’s not enough. You need to present your story in a way that an objective third party can easily follow. You can think of it as a trail of facts linking the evidence you have in a way that any third party would arrive at a finding of discrimination and / or retaliation. This applies to:
HR employees, who won’t act unless there’s definitive proof of wrongdoing.
Lawyers, who only take cases they believe they can win.
EEOC agents, who must choose cases to prioritize among tens of thousands of filings
None of these resources will commit the time to work through scattered evidence or piece together a disjointed story. It’s up to you to bring the puzzle pieces together and present a clear, concise timeline that demonstrates exactly how discrimination occurred. If this sounds overwhelming, that’s normal. Unless you’ve been through this process before or have legal expertise, why would you know how to do this effectively?
That’s where JustiProof comes in. Instead of navigating this process alone, you can simply log your experiences with JustiProof, incident by incident. Our tool helps you summarize your claims clearly, organize your evidence, and generate a formatted report that any third party—HR, a lawyer, or the EEOC—can easily follow.
Ready to take control of your case? Sign up for JustiProof and discover how we can help you fight back and win.
Comments