How to Prove Discrimination at Work

in this video I'm gonna discuss two

things number one how you can prove to

HR that you've been discriminated

against if you still have your job and

you want it to stop and to how a

discrimination lawyer like me proves

unlawful discrimination in court if

you've been fired and you have a good

case my name is Branigan Robertson and

I'm an employment lawyer before we get

to those important topics let me discuss

two preliminary things and get them out

of the way number one I will only be

discussing California law in this video

because that is where I have a license

to practice law however this video is

meant for everyone in America if you're

not in California this video will raise

critical questions that you should then

ask a lawyer in your state if you are in

California this video is not legal

advice because you're watching a video

if you need legal advice call a lawyer

so he or she can hear your story and

then give you specific advice if you are

in California here's my contact

information if you think I've earned

your phone call my office provides free

consultations and we handle

discrimination cases every single day

second you need to have a solid idea of

what the legal definition of

discrimination is before we start

discussing strategies because there's a

significant difference between things

that are unfair and things that are

unlawful generally California's

discrimination law and many other states

for that matter prohibit companies from

taking an adverse action against an

employee because he or she has a

protected characteristic I want to

repeat that definition so that this is

very clear for discrimination to be

unlawful your employer must be taking

action against you because of your

protected characteristic

what are the protected characteristics

you ask it's a very good question I

don't have time to get into that in this

video so if you want to know more about

the protected characteristics across the

country and the ones in California I

highly recommend you watch my video the

ultimate guide to discrimination law in

that video I identify all the protected

characteristics and a whole lot more

detail surrounding them link is below

okay now let's get to the good stuff if

you're still employed how do you prove

to HR or management that you've been

discriminated against my simple response

to this is you don't you don't want to

do that at all look if you're still

employed and you're researching how to

prove discrimination at work you

probably have a couple different


number one you probably would like to

stop the discriminatory activity right

the bad behavior

number two you probably want to save

your job because you want to keep it in

three you probably want to lay a legal

foundation that a lawyer like me can use

down the road if legal action becomes

necessary none of these three things

require you to prove discrimination in

fact you don't want to prove anything

going to great lengths to prove

something to HR or an executive will

make management think that you're a

whiner it will disrupt the flow of work

no butt out no doubt it'll upset your

supervisor and it will destroy key

workplace relationships I'm here to

suggest a better way simply put the

company on notice with a respectful

written complaint what do I mean by that

I mean submit a polite and helpful

complaint in an email to the appropriate

authority at your company this complaint

should be non-threatening concise but it

should absolutely identify that you feel

that you're being treated poorly because

and that's where you would insert the

protected characteristic this complaint

should not jump to legal conclusions and

it shouldn't be done verbally it should

be done via email and then you should

print out a copy for your records if you

want to know more

how to properly complain at work I made

a video on that exact subject I lay out

seven key elements to successfully

making a complaint like this submitting

a complaint my way in this format that

I'm discussing will do a few wonderful

things it's probably going to stop the

discriminatory behavior most employers

especially if they have HR are smart

enough to know when legal liability is

increasing they don't like that and they

will probably instruct the bad guy or

the bad girl to knock it off

second a written complaint will

dramatically help your lawyer down the

road if God forbid it comes to legal

action I'll talk more about this in just

a second three while a complaint in and

of itself will not save your job it will

demonstrate to the company that you're

willing to fight for yourself lawyers

like me often say there is value in the

fight when you stand up for yourself

properly you educate the opposing side

that there are consequences if they do

not act appropriately if they fire you

now after you've complained in writing

they may face increased legal

consequences however don't let this go

to your head if you complain

inappropriately you won't save your job

you'll destroy it so go watch my

complaint video because it will

absolutely help you make a proper

complaint I'll leave a link below let's

say the company discriminates against

you and then fires you then you find a

good lawyer to take your case how does

the lawyer go about proving that you are

discriminated against that's what the

rest of this video is all about first

lawyers establish a foundation as you

recall unlawful discrimination requires

that the company take an adverse action

against you because you have a protected

characteristic therefore it's very

important that your lawyer first

establish that you have a protected

characteristic and that the employer

knew about it while this seems pretty

obvious in a race discrimination case

and can be much more challenging

in a pregnancy or disability

discrimination case for example let's

say you have Crohn's disease first does

not qualify as a disability on your

state's law second did your employer

know about it when they fired you we get

phone calls all the time from people who

say I had such-and-such disability and

it affected my job performance and then

they fired me after I dig a little it

turns out the company didn't even know

that the person had the disability the

company simply can't have discriminatory

intent if they didn't even know that you

were disabled or pregnant or gay or a

Christian or whatever protected

characteristic applies to you in your

case second we look for direct evidence

direct evidence suggests the employer

doesn't like people with that


this could include verbal comments

directed at you or other people written

comments directed at you or other people

with the same characteristic this can be

text messages or emails or any other

written medium this could be jokes

directed at you or others it could

include witnesses some honest co-workers

come to the aid of our clients in their

case they are often happy to give us

dirt on the bad guy or the bad girl but

most co-workers don't voluntarily help

because they are still employed there

and they need the Paycheck but their

past statements and writings can still

be used to our benefit we often find

emails text messages jokes and more that

we used to corroborate our clients

claims that the supervisor had

discriminatory intent when he or she

fired our client in most of our

discrimination cases direct evidences

but it's pretty rare but that's okay

I'll explain why in just a second

third we look at your job performance

history and the company's discipline

history it is absolutely critical that

we establish your baseline of job

performance specifically what I mean is

that we need to be able to prove that

you were a satisfactory employee

had you ever been written up or

reprimanded before how long had you

worked at that company before you were

fired we need to know everything around

your job performance so if the company

lies and says that you were a bad

employee we can show the jury that their

claim is not true and the real reason

why you were fired

is because of your protected

characteristic additionally we want to

know how the company has treated other

employees if other employees have the

exact same characteristic that you do

but they didn't get fired and that's

gonna make your case much more difficult

to prove but if the employer claims that

you were fired for being late one day

and they haven't fired other employees

for being late then it's more likely

that the real reason for your

termination is your protected

characteristic so how do we go about

proving all this first we look at your

personnel file the performance documents

emails and text messages second we get

people to testify under oath that you

were a good employee third we gather all

the information and put it into what

what I call a comprehensive timeline of

events so that we can explain your story

in order to the jury fourth we look at

the circumstantial evidence and in

particular we look at people who are

lying in litigation lawyers in various

discovery tools that we use to collect

information this includes

interrogatories requests for admission

depositions these tools allow us to

collect information under oath that

means if you or the company lies when

responding to one of these the liar has

committed perjury if you commit perjury

the jury will know that you're a liar

and guess what happens and somebody lies

to a jury they lose let's say the

manager who claims or who fired new

claims under oath that the sole reason

why you were fired is because you didn't

some more to submit a report on time you

were supposed to submit it on Friday but

you didn't get it in until Monday but

during discovery we find out we prove

that the company has never fired any

else for submitting a late report

additionally it turns out we subpoena

the managers text messages and find that

he admits to a friend that he didn't

fire you for submitting the late report

while it is true that you didn't get the

report in on time if we can show the

jury that the manager has lied to them

about why you were fired

it will help prove that the real reason

for your termination was your race

religion disability age or whatever the

applicable protected characteristic is

in your case in the legal world we call

this lie pretext essentially the lie is

a fake reason for firing someone or the

real reason is a protected

characteristic I made an entire video on

pretext so if you want to learn more

about that I'll leave a link below

finally we package together all of this

information the foundation the direct

evidence the job performance history the

discipline history the circumstantial

evidence and we present all of that to a

jury during trial the jury is going to

decide on a preponderance of the

evidence burden standard whether or not

your termination was substantially

motivated by your protected

characteristic under the preponderance

standard the burden of proof is met if

you proved to the jury that there is a

greater than 50% chance that the

discrimination claim is true this isn't

Criminal Court when you need to prove

things beyond a reasonable doubt in

civil cases like employment

discrimination it is a much lower burden

of proof which is a good thing for you I

hope you found this video to be helpful

if you are in California and you think

you have a case you can contact my

office if you think I've earned that

privilege we provide free consultations

I'll leave my information on the screen

in case you want to get a hold of me

this video is just the tip of the

iceberg when it comes to proving

discrimination my webpage on

discrimination is far more comprehensive

and detailed so if I didn't answer a

question that you have I recommend that

you go there to get it answered there's

multiple videos table of content

just a ton of information I'll leave a

link in the description next if you

think this video has been helpful please

give it a thumbs up on youtube if you

know somebody who believes they're being

discriminated against that work share

this video with them they will

appreciate it

alright that's all I have for you I hope

you have a fantastic day