Basic Evidence in Employment Discrimination and Harassment Cases

Every case is won or lost based on the evidence.  This is especially true in employment discrimination, sexual harassment, and hostile work environment cases.

Start with the basics:  your employee handbook, benefits descriptions, pay stubs, job offer letter, and contract if you have one.  Also gather any documents that describe who you work with and what type of work your do.  This includes organizational charts, job descriptions, and work schedules.

You will be amazed at the useful nuggets an experienced employment lawyer will find in these basic employment documents.  Your employee handbook, for example, may give you legally enforceable rights.  Your offer letter or contract, pay stubs, and benefits descriptions will help prove economic damages.  Organizational charts will help prove who your supervisors are, which may be critical to holding your employer responsible for the acts of co-workers.    

Pull together any records of your job performance such as copies of your work product, performance reviews, commendations, and awards.  In most employment discrimination and harassment cases, the employer will claim that they acted for non-discriminatory reasons.  You want ammunition in the form of evidence to show that your job performance was satisfactory or better.

Potential Witnesses

Make a list of everyone who knows anything about what happened. 

Start with anyone who actually saw or heard what happened.  Those are the obvious witnesses.

Other types of witnesses are equally important.  Identify anyone who may have suffered from similar conduct.  Also identify anyone who can testify that you were a good employee or who can support your claims of emotional distress.  Potential witnesses include co-workers, family members, and friends.

For each potential witness, give your lawyer their name, job title, and a brief description of what they know.  Provide contact information if you have it.

Evidence of Discrimination and Harassment

If you make a formal complaint to human resources or a supervisor, keep a copy of your complaint and any responses.  How you described the discrimination or harassment to your employer, and how your employer responded, are some of the most important evidence in any employment discrimination or harassment case.

Obviously, you should also gather and preserve any direct evidence of discrimination or harassment.  This may include documents, emails, text messages, voicemail messages, images, and audio recordings.  This type of evidence can be very powerful. 

There is no requirement to have an audio recording of discrimination or harassment, and it often does not exist.  But when it does, it often leads to an early settlement or a large jury verdict.

In New York, you are allowed to record conversations secretly as long as you are a participant in the conversation.  For example, if you are talking to your harasser face-to-face, you may record the conversation without telling them.  But you may NOT leave a recording device in a room to record conversations when you are not there.  When in doubt, consult with your lawyer.

Evidence of Emotional Distress

If you have suffered any stress or emotional distress caused by discrimination or harassment at work, then you should consult with a healthcare professional right away.  The healthcare professional can be a psychologist, social worker, counselor, or even your family doctor.

Whether you are depressed, angry or just anxious, a healthcare professional can help you regain your confidence and peace of mind.  That alone is a good reason to talk to them. 

Consulting a healthcare professional will also help prove your case for damages.  The fact that you consulted them will help prove that your emotional distress is real.  They may also be able to provide evidence that will help prove the amount of your damages, such as their treatment notes or changes in prescriptions for high blood pressure to deal with stress.

The Bad Evidence

Don’t forget the bad evidence! 

No case is perfect.  It is critical that you disclose any bad evidence to your lawyer right away.  The only truly bad evidence is evidence that comes as a surprise to your lawyer.  Be open and honest at the beginning about the good, the bad, and the ugly.  That is the best way to prepare your case for success.

Disclosing problems in advance will give your lawyer the chance to develop a strategy to counter it.  This may include working with you to explain it away, countering it with other evidence, using the discovery and evidentiary rules to exclude or restrict the use of bad evidence, or developing a strategy to settle the case before the bad evidence becomes a problem.

If you have questions about how to prove your case for discrimination, sexual harassment or a hostile work environment, call us at (212) 601-2728 to schedule a free and confidential consultation.

John Howley, Esq.

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