When is it workplace discrimination
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
objectives
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
characteristic
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
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