How to Get A Lawyer for Your Discrimination Case

Many employees struggle to get an employment lawyer for the same reasons they struggle to get HR to take their claims seriously or get the EEOC to find reasonable cause:

• The case is not strong enough to warrant legal action

• The claims are not being communicated clearly and effectively

When contacting law firms – or really any of these resources – it’s important to remember that you’re essentially asking someone who does not have to help you, to help you. With layoffs and rising discrimination rates, employment lawyers have their choice of cases to choose from, so you need to make sure they understand the value of prioritizing your case over the others coming in.

Another factor that often surprises employees when first contacting attorneys is how difficult it is to speak to an attorney about their case in the first place. Many law firms will have an intake process where you provide the facts of your case to an employee at the firm who captures the information and summarizes it for the lawyers. This adds an additional level of complexity, because some information will be lost when being passed through a third party.

So in this post, we’ll share the information that tends to matter most to employment lawyers in order to help you fine-tune the way you approach law firms. 

Contingency vs. Paid Attorney

Many employees hope to retain legal counsel on contingency, which means you are not required to pay any fees up front and your lawyer does not get paid unless you receive financial recovery in some form - typically a lump sum, but it can take additional forms such as reinstatement of your employment. The standard amount attorneys ask for is typically around 40% though it can vary by firm and even by case. While a substantial amount, there is virtually no financial risk to you as the employee except for being aware that you will owe taxes on the full settlement amount paid by your employer, including the 40% that immediately goes to your attorney. 

The alternative to this is paying an employment lawyer for their time and services , which could include a flat-fee or hourly rate. If you are in a financial position to pay for an attorney and you have a strong case, this option could result in you holding onto a larger portion of your monetary recovery, but it’s important to recognize the employer likely has the financial advantage and may choose to fight longer than your financial means may support. 

What Do Employment Attorneys Look For?

Given the favorable terms for employees, law firms and employment lawyers receive more cases than they can support. This flow of cases allows attorneys to be selective when deciding which cases they’ll take on, so it’s important to remember that you are essentially competing with others to prove your case should be prioritized.

With this in mind, attorneys are typically looking for four things:

1. You have suffered financial harm as a result of the discrimination or retaliation

2. You have evidence proving the discrimination or retaliation

3. You have exhausted your internal escalation options

4. No extenuating legal complications or risks 

At the end of the day law firms are just another for-profit organization and the lawyers reviewing your case are just people wanting to know ‘what’s in it for them.’ By knowing what they’re looking for and ensuring you’re direct, you tell them the information they need and make yourself more compelling as a client given you are already prepared and organized. 

Getting Past the Intake Interview

Many employees don’t realize how difficult it is to get a lawyer to take their case on contingency until they start contacting attorneys and find their case getting declined by one firm after another. I know what this feels like as the second attorney I contacted told me to “call back when terminated.” I was devastated. I couldn’t believe I’d have to literally lose my income before I could find legal representation to help me. 

But I didn’t give up, I just changed the way I approached firms based on what I assumed mattered to them most - is my case worth it for them and do I have the evidence I need to win?

I modified what I said to focus on the discrimination and retaliation that resulted in financial harm first (a promotion denied) and emphasized that I had several incidents and escalations documented in writing. Why am I so confident this is the problem?

Because two weeks after one firm told me to contact them when terminated, I had representation on contingency. Nothing significant had changed with my case in those two weeks, I had just modified how I presented my case and adjusted what I said for what would matter most to them. 

Two years later I know for a fact that this was the necessary change, because I have never had a problem getting past the intake person since - whether it was for my case or while supporting someone else. 

Not sure how to summarize your claims according to what matters to law firms? JustiProof guides you through this process by helping you summarize your claims when relaying your concerns to a lawyer or any third party resource you’re seeking help from. While this is a paid feature within JustiProof, you can see how it works under our Summary and Report Demo. 

Common Intake Interview Mistake

Many employees default to telling their story in chronological order, starting with the first minor incident and building to the most significant incident. The problem is you may lose the intake person’s full attention before you get to a key discriminatory incident when it’s most important all the relevant details are captured. To explain this further - think about how you listen to someone else relaying a story. If the story is gripping and interesting to you from the beginning, you continue listening intently. If the story is not that interesting, you continue to listen, but your mind is prone to wander the longer it goes on. 

By focusing immediately on the key incidents of discrimination that impacted you financially (denied promotion, termination) or those incidents that are the most egregious, you have their attention from the beginning because they know your case may have some value to them. From there, summarize backwards, explaining how everything that came before led you to believe this is discrimination or retaliation. You don’t need to provide the specifics about each individual comment, disparity in assignment or frustration, just an overview of what is happening, how long it’s been happening for and whether or not you have evidence proving your claims. 

You can then inform the intake person that you have a detailed report that outlines your claims, every incident and all of your evidence while offering to send it at their request. Using this process you don’t have to hope the intake person captures all of the details and what evidence you have, because you’ve ensured they have the most important details and that it will be clearly relayed that you have a documented timeline and evidence readily available. 

Also keep in mind that it may take you a couple of tries to find what works for your case. However, if you’ve contacted between 10-20 attorneys, adjusting your pitch and you’re still not getting past the intake person, the issue could be something related to your case - potentially a lack of evidence or a concerning legal complication which we cover in the last section. 

Speaking to an Attorney

Getting through to an attorney isn’t a guarantee the law firm will take your case, but it is a great sign. Lawyers make their money building and fighting discrimination cases, so their time is literally their money. If they’re giving some of it to you, you want to go in prepared. 

Essentially this step is a more in-depth review of your claims, but you should still follow the same format. What is the incident that prompted you to contact an attorney, impacted you financially or was the most significant and what facts / evidence do you have that support your claims that this key incident is discrimination? 

Your attorney is experienced, so they’ll be able to read between the lines and ask questions that get to the information they need to know, but you still want to take this time to present yourself as credible and organized. Essentially you want to be the type of person they want to work with and even better if they walk away believing you will be easy to work with. Being easy to work with often requires you to give the impression that you're authentic, but also that you’re organized, prepared and willing to put in the effort necessary to win your case. Yes, they’re going to help you build the case, but capturing the evidence and getting the details necessary to build the case is your responsibility. 

It’s important to keep in mind that each law firm and attorney will have varying degrees of availability, so you shouldn’t assume one attorney or firm declining your case means that no one will take it. Many victims of discrimination have to contact multiple firms before they find representation. As long as you are getting through to the attorneys and they’re not voicing any specific concerns, it is a good sign and you should continue looking for representation. 

Legal Complications and Risks

It’s important to be aware of certain factors that may impact how appealing your case is to lawyers, especially those within your control. 

Mandatory Arbitration Agreements

If you signed a mandatory arbitration agreement with your employer there is typically nothing you can do about it, but you should inform potential attorneys and have them review it to ensure it is valid and legal. Most law firms will ask you if you have one during the intake interview, because they limit your legal options for fighting discrimination and retaliation and are becoming more common. 

The agreements and the limitations can vary, but most common is they limit you to arbitration when resolving any disagreement with your employer. This means you cannot file or fight your claims through the court system (state or federal). Unfortunately it also may make it more difficult for you to get representation as arbitration tends to favor employers over employees and these agreements also often block the most profitable form of lawsuits, class action lawsuits. 

We cover this in more detail in Locked Out of Justice: Mandatory Arbitration Agreements

The Employer Hasn’t Been Given the Opportunity to Act

It’s important to remember that when you file discrimination or retaliation claims you’re filing against an employer, not an individual. To bring claims against an organization or your employer you must prove that you followed the escalation process outlined by your employer and your employer still failed to act. The specific process at your employer may vary, but typically it requires informing leadership or HR resources about the situation and giving them enough time to take action. 

While we know escalating can be intimidating, it’s a necessary step to getting external support. We cover this in more detail in Escalation is Crucial: Why You Must Report Discrimination

Once you do report it, you must give your employer time to respond. Unfortunately, it is possible that you will experience retaliation after reporting your concerns and if you do, it’s important to begin documenting and capturing evidence that demonstrates how you were treated prior to reporting discrimination and how you were treated after. 

You Voluntarily Quit Your Employer

While you can claim your departure was 'constructive termination,' any lawyer will tell you this is difficult to argue and win. You will need to establish that your working conditions were truly intolerable - one lawyer described it as basically needing to prove there was valid risk to your safety. 

The reason this makes your case less appealing to a lawyer is if you can’t prove ‘constructive termination’ you won’t be able to recover any of the income lost while unemployed. The less income you can recover, the less appealing your case is to employment lawyers. 

The one exception to this, is if you leave for alternative employment that offers equivalent or higher compensation. However, it’s not recommended to leave for an employer offering less compensation as you’ll also struggle to recover that lost income for the same reasons.

You’ve Gone Public With Your Claims

Any information you’ve shared publicly can be used against you in court and if those claims are related directly to the discrimination charges you’re filing for, you’ve given the employer an advantage you didn’t need to.

Some people are under the impression that media attention is beneficial to their case and will only help them get an attorney, but many attorneys prefer you share absolutely nothing publicly, at least not without their guidance. This is especially true if the law firm leverages NDA agreements to ask for additional financial recovery. If you’ve already spoken out about your case, you’ve eliminated this option for the firm and that may make your case less appealing.

This may matter to you or it may not, but it’s important to be aware of the impact speaking out may have on your legal options before submitting that post. 

Final Thoughts

Hopefully this post has helped provide some direction on how to go about getting representation for your discrimination and retaliation claims. While having legal representation is always preferred, especially if you are raising discrimination concerns for the first time, it’s also important to know there are some things to watch out for and be aware of when seeking representation. We share more details about this in Pros and Cons of Getting a Discrimination Lawyer.

If all of this sounds great, but you have no idea how to get started, try JustiProof. Our solution guides you through the process of documenting and summarizing effectively and clearly so you can get the support you need.

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