Monday, January 24, 2011

What Evidence Should I Gather for My Discrimination or Retaliation Lawsuit? Part I

The title of my Blog asks a question that actually "puts the rabbit in the hat."  Perhaps it should actually be entitled "How Do I Create Evidence for My Discrimination or Retaliation Lawsuit."

That term, "create evidence," has a negative connotation, no?  But, allow me to explain.

The fact is, written evidence is the best evidence - particularly if the writing is clear and on point.  Verbal evidence, that is, a description of a conversation, is much more easily subject to disagreement, confusion or plain old fashion impeachment.  Whether we like it or not, many jurors or more inclined to believe "authority figures" such as HR Representatives, managers, supervisors and officers of a company than they are Jane or John Employee Trying to Win a Discrimination Claim.  Think - Police Officer versus alleged perpetrator.

So, why leave things to chance. If you make a complaint to HR about sexual harassment or racially insensitive behavior, put it in an e-mail.  Do not beat around the bush - come right out and say what you mean.

If you believe the company is retaliating against you because you demanded overtime, or just took and FMLA leave, report it - in writing - to HR. 

Anything you say to HR, copy your Boss on - after all, he/she is the one who controls your job and the decision as to whether to fire you or not.  And only decision-makers like your Boss can create liability on the part of the company. 

If HR or your Boss should call you or speak with you about your complaint, then confirm the conversation in an e-mail - chances are, they called you because they did not want anything in writing.  Don't let them undermine your right to protect yourself.

It seems to me that many of my clients recognize "the magic of written words."  However, they feel that putting their complaints in writing is too strong of an approach.  It seems that this logic goes like this: "If I complain verbally, the Company will not hate me as much as if I complain in writing."  Sorry, that's really not true.  The company will not be happy no matter how it is you state your complaint.

However, if you put it in writing, you will let them know you mean business, and will have much greater protection against at retaliatory wrongful discharge.

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