Speaker 1: In this video, I'm going to 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 wanted to stop. And two, 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? That'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. And 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 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 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, it can be much more challenging in a pregnancy or disability discrimination case. For example, let's say you have Crohn's disease. First, does that qualify as a disability under 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 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 use to corroborate our client's claims that the supervisor had discriminatory intent when he or she fired our client. In most of our discrimination cases, direct evidence is 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 are 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, that's going to 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 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 have 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 when somebody lies to a jury? They lose. Let's say the manager who fired you claims under oath that the sole reason why you were fired was because you didn't 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 and we prove that the company has never fired anyone else for submitting a late report. Additionally, it turns out we subpoena the manager's 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 had 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 where 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 where 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 contents, 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 at 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.