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Facing workplace discrimination can leave you feeling confused, overwhelmed and defeated. You're trying to survive and fighting further is probably the last thing you want to think about. That said - I know you don't want to leave yourself without options if things escalate, which is why I've written this guide with 5 actions you can take today that you'll definitely thank yourself for later.
1. Begin Capturing Evidence Immediately
Starting today, capture the details for any incident where you believe a discriminatory or retaliatory action occurred, including what happened, date of incident and who was there. When possible, we recommend capturing these details immediately after the discriminatory or retaliatory incident as this will ensure you capture the information when the details are most clear in your mind. To make this step easier, JustiProof includes a voice-to-text feature so you can save the details when they’re fresh in your mind and if necessary, return when you have more time to remove unnecessary context or add additional details (something our AI can also help with). If you’re in a state that has single-consent recording laws you can also record relevant conversations, though it’s important to be certain this is legal where you live before you do as recoding someone without their consent can backfire if it's not.
You should also begin capturing screenshots of messages and copies of important documents (emails, performance reviews) relevant to any incident that occurs beginning today. It may also be useful to go back and capture details and evidence from previous discriminatory or retaliatory incidents, but if this feels too daunting, just start with what happened today.
Your goal is to establish a pattern of behavior that demonstrates discrimination and retaliation, and if it’s ongoing, you may be able to establish the pattern without past incidents and evidence. Plus depending on how long ago they occurred and what state you live in, the incidents may already fall outside of the timeline for which you can pursue violations (see step 5) in your State.
Whatever you do, begin capturing evidence today and trust that you can figure out what to do with that evidence or work your way back through your past incidents in the future. Just get started.
2. Save Your Evidence Somewhere, Anywhere Other than Work Devices
Evidence captured and saved only on your work owned devices might as well not exist if you cannot access it when and if you are ready to seek external help. I know people may find this step intimidating as these resources are owned by the company, but I have also spoken to countless victims of discriminatory or retaliatory termination who realized too late they had no path to getting justice, because they failed to capture any evidence. These people feared the consequences of being caught saving evidence that proved they were being discriminated against, so they ‘played it safe’ only to find themselves terminated anyways and now without any way to prove their termination was discrimination.
There is always the option that you capture evidence and still choose not to fight - that’s your choice and there are many valid reasons for making this choice - but at least then it will be you who chooses not to fight vs. having the option to fight also taken from you.
However, it is important to note that anything you capture should be treated as sensitive, confidential material and should not be shared publicly.
3. Check for an Arbitration Agreement
Many companies require employees to waive their right to sue the company as a condition of employment through a clause called a mutual arbitration agreement. Arbitration agreements remove your right to face your company in a court of law and instead force you into private arbitration where decisions are final, binding and tend to favor employers. It is also becoming increasingly common for these agreements to block employees from filing collectively through class-action lawsuits.
Learning you have one is not a dead end, but since it impacts what options you’ll have, it’s important to know either way. To learn more about arbitration, you can review our post: Locked Out of Justice: Mandatory Arbitration Agreements
4. Look Up Filing Deadlines for Your State
The Federal agency in charge of enforcing civil rights laws is the Equal Employment Opportunity Commission (EEOC). However, it is important to be aware of the filing deadlines as the EEOC only allows you to file discrimination claims for incidents that have occurred in the last 180 days (six months) unless the claims are also covered by state or local anti-discrimination laws based on where you live. Not sure what the laws are in your state? Look them up with JustiProof.
If your claims are covered, you will have 300 days to file after the last discriminatory act took place, but this is still only ~10 months. In addition to the EEOC, each state has an agency in charge of enforcing civil rights laws. Some of these agencies are far more generous with their filing deadlines, for example California gives employees three years to file as long as the most recent incident occurred within the last year, while others align closer to the EEOC policies, such as Texas which also gives employees 180 days. However, while the deadline is shorter for TX, the existence of state anti-discriminations laws does extend your EEOC filing deadline to 300 days.
Regardless of what the dates are for your state, being aware of filing deadlines can be the difference between having a chance at getting justice or being blocked from justice entirely.
5. Communicate Concerns to HR and/or Leadership In Writing
We know this is intimidating, but it's important to notify your leadership and HR, so they are aware of your situation and the ongoing discrimination. Unfortunately, you may find that the warnings you heard about HR "not being your friend" are true - many of us do - but you may also be surprised and find they do step in, take action and rectify the situation. Perhaps, they'll refuse to acknowledge your concerns are valid, but are willing to compromise by moving you to another team. At least then you're out of a bad situation.
If you want more information and suggestions on escalating internally, read Escalation Is Crucial: Why You Must Escalate Internally Before Seeking Legal Action
Finally - A reminder that you deserve to be treated fairly at work— we know this fight is awful, but these five steps will ensure you have options in the future that you may not even realize you'll want yet. And if you don’t end up wanting those options? Simply delete any evidence you've captured and move on.
Need help documenting and capturing evidence?
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