How Professional Records Help Your Discrimination Lawsuit

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The first step in a discrimination lawsuit starts before you ever leave work. By gathering your professional records ahead of time, you can fight back against victim blaming. Find out what you should know, and what you can do before even meeting with a lawyer to make your case stronger.

In How to Create a Sexual Harassment Log, I explained that your log should include performance reviews, job offers, raises, and other professional records. In this blog I will explain how an employment attorney can use those records to prove your workplace discrimination lawsuit. I will explain what records you should keep and why, and explain how they can protect you from a common employer defense strategy.

Why Professional Records Are Important

Whether you are facing workplace bias based on your race, gender, religion, or sexual orientation, your discrimination lawsuit comes down to one of two legal theories:

  • Hostile work environment or
  • Adverse employment decisions.

An adverse employment decision can include any decision by a manager, supervisor, or boss that negatively affects your work, as long as it is based on one of the protected traits. While a hostile work environment is usually demonstrated by logging who did what on the job, proving adverse employment decisions can take a bit more paperwork.

When most people think of employment discrimination they imagine a person being fired because of their gender, or passed over because of their race. But there are more subtle decisions your boss makes every day that could be considered grounds for a discrimination lawsuit. Decisions like job delegation, shift assignments, and raises can sometimes go unnoticed without careful attention to your professional records.

How Lawyers Use Professional Records

When you file a complaint with the Equal Employment Opportunity Commission (EEOC) or in civil court, you will have to show that your employer made work-related decisions based on illegal bias. Your discrimination attorney can use your professional records to show when and how these decisions happened. By gathering documents from before and after the discrimination began, your attorney can show what has changed along the way.

One popular defense employers use in discrimination cases is to say that the decision was made because of employee performance. In other words, it wasn’t your race, sex, or ethnicity that caused you to be fired; it was the work you did in the past. Professional records are a strong tool against this defensive tactic. By showing what other supervisors, managers, or even previous employers thought of your performance, your lawyer can prove that it wasn’t your work that motivated your employer. It was bias.

What Professional Records Should You Keep?

Which records are most important depends on what your boss is doing.

  • Offer letters and contracts: Your lawyers can use offer letters and employment contracts to show what your work was supposed to be.
  • Performance reviews: If your employer uses periodic performance reviews to determine raises, promotions, or bonuses, these reviews can demonstrate your value as an employee. As supervisors change, and biases become evident, you will be able to see shifts in the way you are evaluated.
  • Proof of raises and bonuses: Your attorney can use anything from a check stub to an award letter to show when you have received raises or bonuses in the past. This can also provide clues to your lawyers about what documents exist for other employees, so they can show how you were treated differently than your coworkers.
  • Work schedules and job assignments: By keeping a log of your weekly work schedule or job assignment over time, you and your lawyer can see where a supervisor is treating you poorly. If you are consistently brought in for split shifts or odd hours that you didn’t expect, it could be a sign of discrimination.

Why Not Let the Lawyer Do the Work?

As you prepare to file a discrimination lawsuit, it is a good idea to start gathering the paperwork, even before your lawyers draft a complaint. Unfortunately, sometimes when an employee complains about discrimination he or she may be quickly fired or denied access to records related to employment. This is illegal retaliation, but it can make it harder to prove your case. That’s why it is a good idea to collect your documents early, rather than letting your lawyer do the work as part of your discrimination litigation.

An experienced employment discrimination attorney can make your professional records work for you, helping to prove your discrimination lawsuit. At Eisenberg & Baum, LLP, our staff can help you identify what to keep, and make a strategy to get the relief you want, in or out of court. Contact us to schedule a free consultation.

How to Create a Sexual Harassment Log

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If you are facing sexual harassment at work, you may feel like there is nothing you can do, but there is. By keeping a log of offensive workplace behavior you can help your lawyers build your case and get a better result in the long run. Here’s what you need to know to log sexual harassment.

In this blog I will tell you how to create a sexual harassment log, including what to include and how to store it. I will also review the federal laws around sexual harassment and explain how a log can help.

Sexual Harassment is Illegal

Sexual harassment is against local and federal law. Title VII of the Civil Rights Act prohibits harassment of an employee or applicant because of that person’s sex. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, or sexual statements or physical contact. It can also include offensive remarks based on a person’s sex.

In most cases, a single act isn’t enough to count as sexual harassment. Instead, a person claiming sexual harassment must show that the behavior is severe or frequent enough to create a hostile or offensive work environment or resulted in an adverse employment decision (like being fired, suspended, or passed over for promotion).

Why a Sexual Harassment Log is Important

Since most sexual harassment lawsuits depend on demonstrating a pattern of behavior, documentation is key. By collecting information about your working environment on a day-by-day basis, you can help your attorney build your case. Your sexual harassment log will give clues to guide discovery – the process of gathering information from your employer prior to trial. When it comes time for your administrative hearing or trial, your log can also help you prepare to testify.

How to Create a Sexual Harassment Log

The more complete your sexual harassment log, the better it will serve you in preparation for your sexual harassment lawsuit. Keep everything together in one place, so you aren’t scrambling to track down documents later. The log can be digital or physical, but it should never be stored on a computer, laptop, or phone provided by your employer.

What to Include

A sexual harassment log should include the who, what, where, when, and why of each occurrence. For each incident that happens be sure to include:

  • Date
  • Time
  • Location
  • Offender’s name & title
  • Description of what happened
  • Witnesses’ names & titles
  • Your reaction

Be as specific as you can. If you estimate that an incident happened at 11:00 a.m. and the offender is later able to demonstrate that he or she was in a meeting until 11:30 it can hurt your credibility and the strength of your log.

Recording Details is Important

Sexual harassment is by nature disturbing. It can be tempting to generalize what happened so you do not have to relive the experience again. But recording details, including slurs or insults and actual words used is important. The more detailed your records can be, the more useful they are to your attorney and the court.

You should also include details about what was happening in the moments leading up to and following the incident. This will provide important contextual information and help your witnesses remember information that may not have been as important to them as to you.

Recording Your Reactions

You should never feel silly or ashamed about your reactions to sexual harassment. Recording how you felt after an offensive incident is important. Whether you were mad, sad, afraid, or uncertain, your impressions can show the court how your co-workers’ behavior affected you and your ability to do your work.

Keeping Documents

Your log shouldn’t just be your personal thoughts. It is also a place to keep all the documents involved in the incident. This could include:

  • Emails to or from your employer about the situationJob Performance Review Paper
  • Emails to or from the offender
  • Text messages or instant messages
  • Physical letters, memos, or notes
  • Formal complaint forms
  • Pictures
  • Statements written by witnesses
  • Performance reviews

Print everything out or copy the documents to your personal electronic record as soon as possible. Do not trust that you will have access to your employer’s records after the fact. If the circumstances of your sexual harassment get you fired you could very quickly be cut off from the information.

Include Formal Employment Documents

You may not think to include things like work schedules, performance reviews, or other employment documents in your sexual harassment log. But these documents can be crucial to demonstrating an adverse employment decision. Collect employment documents from before, during, and after the harassment. But be careful to remove proprietary information which are you not permitted to take. Your attorney can use the historical data to show what your work was like before the hostile workplace was created.

Preparing for a sexual harassment lawsuit doesn’t happen overnight. Creating a sexual harassment log is an important step to getting the harassment to stop. At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you create a strategy to defend your career and end the harassment. Contact us to schedule a free consultation.