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When you face workplace discrimination, one of the first ways you may think of taking action is getting a lawyer. It was certainly one of the first options I considered once it became clear that my internal escalations to HR and leadership was not going to resolve the problem. At the time I assumed that having a lawyer in my corner would force my company to take my concerns seriously and correct the ongoing discrimination and retaliation I was experiencing.
However, over the course of the next year, while employed and represented by a law firm, I learned that having representation has both advantages and disadvantages.
How did my employer respond to my getting a discrimination lawyer?
I thought my company would finally and immediately recognize the seriousness of the situation when they learned a large firm had agreed to represent me for my discrimination and retaliation concerns.
What actually happened when they received a letter from my employment lawyer? The Okta Alumni Channel suddenly came back to life after two months of inactivity to post a seven month old video of me talking about why I had returned to the company after a short departure for a startup. But what most struck me most about this sudden post was the message they added when sharing the video …it’s crucial to leave your employers on good terms and maintain a positive relationship even after giving notice of your departure. To achieve this, it’s essential to maintain a productive workflow until your last day on the job. Doing so demonstrates your professionalism and helps you retain a positive relationship with your colleagues and employers.
And then another surprise — the Chief People and Places Officer commented on it with a seemingly harmless “+1 to Boomerang’s.” Was the post and timing just coincidence? Was it intended to intimidate me? I’ll never know for sure, but I know it was the only post on the Alumni Channel that the executive commented on before or after. I also know that when I later shared the post and comment on LinkedIn the Chief People and Place Officer removed his comment.
What can I do about it? It turns out that even with a lawyer… basically nothing, because it’s going to be impossible to prove that it wasn’t a coincidence. However, it’s worth noting that my interview was the very last one posted to the page and the second to last post on the page before going inactive again. The final post, one week later, was on mental health awareness. Why am I sharing this personal story to start this post? Because it is just one example of how fighting a company legally quickly reveals to an employee how unbalanced the entire system is.
As the next year progressed, I would realize that legal counsel isn’t a guarantee of anything and worse — the lawyer you thought was your saving grace may just be another player in this unfair ‘game’ that leaves you disappointed. That said, having a lawyer was also undeniably valuable for validating my concerns and helping me build my case. Which is why in this post, we’ll cover the Pros and Cons of hiring an employment lawyer for your discrimination claims.
Pros
Legal Reassurance that Your Claims are Valid
One of the things I was most grateful for after retaining legal counsel was the validation that my concerns were legitimate. A lawyer representing you on contingency only gets paid if you win your case (or negotiate a settlement), which means they don’t take you on as a client unless they think there’s a good chance of recovering some or all of your financial damages.
Many victims of discrimination doubt themselves, wondering if what they experienced is as bad as they believe it to be. This is especially true if, like in my case, the company’s HR or leadership is gaslighting the victim in an attempt to convince the employee their claims aren’t valid and that the employee themselves is the actual problem.
For example, I cried when my attorney agreed to review the evidence I had, even though it wasn’t yet a guarantee they would take me on as a client. Why? My company’s response had made me feel like I was seeing monsters that weren’t there, so the fact that she thought it was even worth looking into was more validation than I had ever received from my company. Of course, given that I’m writing this post, they did end up taking my case. Had they not and had I not been able to find alternative representation, I’m not sure I would have had the confidence and conviction to continue fighting the 2+ years I’ve been fighting.
Legal Guidance For Building Your Case
Not all workplace grievances meet the legal threshold for discrimination or retaliation. An attorney’s expertise can help you distinguish between the issues you can fight in court and those that would serve as more of a distraction from the claims you can fight.
When Your Lawyer Fights For Your Case, They Fight To Win
Law firms take on a lot of risk and expense by representing an employee on contingency, so there’s no doubt that they’re invested in you winning. This is especially true if they signed with you through litigation (and not just settlement negotiation).
Cons
Forced Silence as a Legal Strategy
Once you’re in a legal process, anything you say to anyone outside of legally protected relationships can be used against you. This means you can typically talk to your lawyer, your spouse and maybe a therapist, but no one else. Beyond that you’ll likely be advised to be careful about looking too happy on social media (especially if you are claiming emotional damages) and to be mindful of anything you put in writing (including messengers and text).
Settlement-Only Contracts
Many large legal firms structure their initial contracts to focus first on securing settlements. While settlements are often quicker and less risky for the law firm, this can be a significant disadvantage if your employer has no interest in settlement negotiations. If they won’t participate and litigation is the only other option, you may find yourself suddenly abandoned by the attorney you were counting on while also needing to search for new representation. In addition to this, your first law firm can still place a lien on any future recovery making it more difficult to get another lawyer.
In my situation, my lawyer advised me to turn down a settlement offer from my employer, but also declined to litigate further. Neither of these things prevented the firm from placing a $60K lien on any future financial recovery I am paid.
Getting a Lawyer Isn't Easy
Many employees are surprised how difficult it is to find an attorney to represent them for workplace discrimination. One reason an employee may have difficulty finding a lawyer is a lack of evidence or a weak case overall, but even if an employee has a strong case, it can be a numbers game. A lawyer or firm may be too busy, especially if they feel your case is complex and will require additional effort and/or resources to win. For example if your case is potentially worth twice their normal case, but is 3x as complex, it may not make financial sense for the lawyer to take you on as a client.
This rejection often feels personal and can make a victim of discrimination question if they should bother fighting at all, but I’d encourage you to try at least 10, maybe even 20 firms before you give up. I know plenty of people who called dozens of lawyers before finding one willing to represent them, so don’t lose hope if the first or second rejects you.
If you’re not sure where or how to get started contacting lawyers, you may find this post useful: How to Get A Lawyer for Your Discrimination Case.
You Are A Financial Decision First, A Victim Needing Justice Second
Despite their role in helping victims, employment lawyers are also running a business. They can be a significant support when fighting, but you may not always feel like your lawyer is fully in your corner and that’s because they’re not — they’re only in your corner if they believe they can win enough to make it worth it for them to continue helping you. The legal world is often clinical and impersonal. This can leave you feeling like just another case rather than someone who matters and deserves justice.
Other Important Considerations
A Bigger Firm Isn’t Always Better
While larger firms may seem more powerful, they aren’t necessarily the best fit for every case. It’s important to keep in mind that large firms can sign many, many more clients for settlement negotiations than they could possibly support for litigation. As a result, they may be willing to represent you during the earlier, less costly portion of your legal fight and still decline to represent you for litigation.
If you consider the fact that these firms stand to make significantly more on a single class-action case and that they have the resources to fight and win those large cases, it makes sense. Though that won’t make it any less bitter of a pill for you when you learn they won’t litigate your case and you’ll need to find a new lawyer. On the other side of this, a small firm with 1–5 attorneys is likely to only invest resources and time on cases that they’re willing to pursue to completion. Of course, they will take a settlement prior to a trial if it’s an option, but if a settlement doesn’t happen they’re less likely to walk away completely unless there’s an attorney / client conflict.
You Have Other Options
Hiring a lawyer isn’t the only way to fight discrimination. Agencies like the EEOC or state-based civil rights agencies can provide alternative avenues for seeking justice. I sometimes wish I had gone straight to these agencies first, but I also can’t deny the benefits of having a lawyer helping me prepare my case and understand what is relevant before filing. That said, plenty of employees fight independently and recover financially without being stuck paying out a significant amount to their attorneys because of a lien or client fee.
If you’re planning to go this route or you just can’t find a lawyer to represent you, you may want to read our 7 Tips for Winning Your EEOC Case Without a Lawyer.
Final Thoughts
Hiring a lawyer can offer legal expertise and reassurance, but it’s not without its downsides. You have options and I’d encourage you to discuss your case with multiple law firms rather than jumping at the first one willing to take your case.
And remember, even if you hire a lawyer, gathering the evidence, building the timeline and telling your story will still be your responsibility. To see what kind of evidence matters in a discrimination case, read our Evidence to Prove Your Workplace Discrimination Claims post.
And if you need help or don’t know where to start with documenting your discrimination claims, JustiProof can help you document, escalate and protect your career from workplace discrimination.
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