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In workplace discrimination cases, the strength of a victim’s case is dependent on the evidence they captured and currently possess. Evidence is the difference between being able to get a lawyer (on contingency), getting the EEOC investigate your claims and even whether HR will take your claims seriously. Why do all of these resources care so much about evidence? Because successfully fighting discrimination requires satisfying the Burden of Proof.
If you want to learn more about what it means to satisfy the burden of proof, I recommend reading our post EEOC and the Burden of Proof.
However, for this post, we’ll be focusing on our recommendations for collecting evidence to prove your discrimination claims, including what common evidence pitfalls to avoid and the evidence best practices to follow.
Evidence Pitfall 1: Not Collecting Evidence
Not having evidence won’t prevent you from filing with the EEOC, but it significantly increases your chances of being disappointed with the outcome.
I have talked to countless employees who didn’t collect any evidence and as a result never see justice. Many of these employees told me they intended to collect evidence, but either feared retaliation or simply thought they had more time before abruptly being terminated.
Unfortunately, it doesn’t matter why you didn’t collect evidence, only that you can’t meet the legal requirement for satisfying the burden of proof.
I understand the idea of going back and capturing every screenshot and email can feel overwhelming, so don’t. Start with capturing the evidence for anything that happened today and going forward.
Of course, ideally you will go back at some point and collect relevant evidence from the past, but at least if you start capturing evidence today you have something to demonstrate the discrimination you’ve experienced and that’s better than having nothing.
Evidence Pitfall 2: Saving Evidence on a Work Device
You may know evidence exists and even exactly where it can be found, but it might as well not exist if you don’t have it and you can’t access it. Typically this scenario happens when employees collect evidence, but keep it all on their work computer or device. The employee assumed they had more time or that the discrimination wouldn’t go as far as it did, only to find themselves terminated without any proof to demonstrate the discrimination they experienced.
If you don’t have a personal device to save documents on, sign up for JustiProof where you can securely upload evidence as you document the incidents they support and build an effective discrimination complaint.
Evidence Pitfall 3: Nothing In Writing
Companies know that they win the he said/she said arguments, because the burden of proof is the responsibility of the person who files the claim (you). For this reason, leadership and HR will often request the sensitive and problematic conversations are done verbally (on a call | in person | on a virtual meeting).
For your own protection, you need to ensure these conversations are also documented in writing. This ask doesn’t have to be aggressive, it can be as simple as requesting the follow-up to ‘ensure you’re both on the same page.’ If the individual declines, then you should write up a summary of the conversation and send it to the person you spoke with. In this summary include any concerns you stated verbally and any evidence you have to support those concerns.
The person who receives the email will have two options:
Respond to correct any statements they disagree with / deny
Ignore your email, which can be inferred as they agree with your summary of the conversation, but have nothing additional to say regarding your concerns.
Either way documenting your concerns in writing will make it more difficult for your employer to manipulate what was said and done.
Evidence Pitfall 4: Witnesses As The Only Evidence
Witnesses can be a great option for supplemental evidence, but because people are unpredictable and can change their mind, they shouldn’t be the only source of evidence you have.
Unfortunately even when people are adamant that they want to help, it’s not uncommon for witnesses to back-out due to fear of retaliation. This is especially true if they are still employed at the employer you’re filing against.
The other problem is witness testimony is only valuable if the investigator believes the witness is credible. The investigator is going to assume any witnesses provided by either side is biased, but if for whatever reason they also decide the witness does not seem credible, then the witness adds little value to your claims.
None of this is to say witnesses can’t be beneficial to your case, only that witnesses should be used along with written, factual evidence.
Evidence Pitfall 5: Relying On Employer Evidence
It is true that your employer will likely respond to your complaint with a position statement and include evidence, but it’s important to remember that the evidence they provide will be evidence that supports their version of events.
Many employees expect the EEOC will demand records from the employer once the employee files, but this is not the case. The EEOC is an objective, third-party reviewing your claims, not a personal advocate fighting alongside you to help prove your claims. It is your job to satisfy the burden of proof and the EEOC is not going to help you do that.
Yes, the EEOC has authority to demand records, but that would require the employee meets their burden of proof first. However, even if you do, the EEOC is far more likely to make an investigative decision based on the evidence they are provided voluntarily than they are to begin demanding records from your employer.
If the only evidence provided for the investigation is the evidence provided by your employer or if your employer simply has more evidence supporting their narrative, you can expect an increased likelihood that the investigation will be found in the employer's favor.
Evidence Pitfall 6: Expecting The Employer to Play Fair
Your employer, or at least their legal team, is familiar with employment law and they are proactive in their efforts to fend off lawsuits. Anyone who has been in leadership can tell you that before a manager can terminate an employee, HR insists on a paper trail. This isn’t just a process to check a box, it is a process to mitigate legal risk.
For example, if your manager documents their “ performance concerns” and sends it to you via email, they’ll likely suggest that you discuss it on your next call. If you have concerns or disagree with the manager's assessment on that call, but only share those concerns verbally, you have no evidence you disagreed. To the objective, third-party there is no way to know what was said, so the only thing they know for certain is that you were informed of the performance concerns and you seemed to receive this communication without dispute.
Recognizing the employer is always moving to protect themselves, you should respond by doing the same. For example, if you respond to that email by stating your concerns and save that email for your own investigation, you now have critical evidence that proves you disputed your managers claims and had a valid reason for doing so.
Best Practice 1: Catching The Employer In A Lie
This is where having the truth supported by evidence in your corner can lead to a win despite your employer’s advantages. Employers expect employees to have made mistakes when documenting their concerns and collecting evidence, which is why there are countless stories of employers lying during EEOC investigations or intentionally leaving information out. The sad reality is most employers do this and get away with it.
However, for the well prepared employee with significant evidence, the employer’s assumption that they will get away with this may help the employee win. Continuing with the above example, not only does the employee have proof to dispute the employer’s claims, but they can point to the employer leaving the employee’s response out as evidence that the employer is not acting in good faith and is intentionally attempting to cover up the harm done. This is especially true if the email written to dispute the initial performance concerns was well supported by data and facts showing the situation shouldn’t have been allowed to progress further.
Beyond that, this false or misleading position statement can become evidence if you and your attorney choose to pursue your claims in federal or state court, casting doubt on whether the employer can be trusted to provide truthful information now despite having previously attempted to deceive the EEOC.
Best Practice 2: Comparative Evidence Is Crucial
In addition to demonstrating the harm you suffered because of the discrimination (promotion denial, termination), you’ll want to also show that someone who was equivalent to you, but not part of your protected class, did not suffer the same outcome. Put another way, by showing someone equivalent to you, who was not part of your protected class, received favorable treatment compared to yours, you further establish that you were treated differently because of your protected class.
For example, if as a woman you were denied a promotion, but two men with the same tenure and an equivalent or lower performance record were promoted, it can be inferred that given the only difference is your protected class, this is discrimination.
Comparative evidence is particularly useful, because modern day discrimination is often subtle, nuanced and requires establishing a pattern of escalating events. Comparative evidence on the other hand is a bit more straightforward, setting a base line according to how others were treated and showing how you, in comparison, were treated differently due to your protected class.
Best Practice 3: If It’s Legal To Record, Record
Not every state is a single-party consent state for recording, but if you live in one of those states you should take advantage of it. Many of the people I know who have received favorable settlements, won because they had a recording of a discriminatory conversation that was impossible for the employer to disprove.
However, if you live in a state that is not a single-party consent state, it’s important to know this also, because if you record others without their permission and are caught, your employer can take legal action against you, which they may do as a form of intimidation to stop your claims from moving forward.
Best Practice 4: Collect All Relevant Evidence
Relevant evidence includes not just documentation that proves the workplace discrimination or retaliation, but also evidence that demonstrates that as an employee you were qualified for the role and / or meeting expectations. Below is a list of documents you may want to consider saving if you have not already:
Emails and Messages: Any written communication that demonstrates discriminatory comments, unfair treatment, or retaliatory behavior.
Performance Reviews: Document changes in performance ratings, especially if they seem inconsistent with prior reviews or feedback.
Witness Statements: Colleagues who can corroborate events or behaviors.
Policies and Handbooks: These documents can help establish how your employer defines and enforces anti-discrimination policies.
Timeline of Events: A detailed timeline of incidents, including dates, times, and people involved, to show a pattern of discrimination.
Changes in Work Responsibilities: Evidence of being excluded from meetings, reassigned to less desirable tasks, or stripped of authority.
Pay and Promotion Data: Documentation showing discrepancies in pay or opportunities for advancement compared to peers.
Escalation Communication: Every time you escalate, document what you said and what the response was (or lack of response) from HR or leadership
If you’re not sure what evidence to capture, our built-in AI assistance will provide customized suggestions for what evidence you may want to capture based on the incident you described.
Conclusion
Evidence transforms your claims into a compelling complaint that cannot be ignored. It strengthens your position, makes HR and legal channels take notice, and gives you a chance to protect yourself and others from future harm.
Many employees feel overwhelmed at the idea of capturing evidence, but if you are going to put in the effort to fight back and take a stand against workplace discrimination it’s essential to have a strong case built on evidence.
The good news is, since most employers assume you won’t be prepared or have the evidence you need to prove discrimination, they are likely to make mistakes which will only serve to increase your chances for a successful outcome.
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