Can I Sue My Employer For Discrimination? Steps To Sue

Discrimination in the workplace is unfortunately still common, despite significant progress in diversity and inclusion over the past decades. Employees who face unfair treatment due to race, gender, age, disability, or other protected characteristics may have grounds to take legal action against their employer. Here is an overview of key considerations in determining whether to pursue a discrimination lawsuit.

What Characteristics are Protected from Workplace Discrimination?

Several traits are shielded from discrimination under federal and state laws. These include:

  • Race – An employer cannot make decisions based on someone’s racial background, skin color, or ethnicity.
  • Gender – It is illegal to treat employees differently due to their sex. This includes pregnancy and sexual harassment.
  • Age – Individuals over 40 are protected against age discrimination. Employers cannot terminate based on advanced age.
  • Disability – The Americans with Disabilities Act and similar laws prohibit discrimination against those with physical or mental disabilities.
  • Religion – Employers must accommodate religious beliefs and practices unless doing so poses an undue hardship.
  • Sexual Orientation – Federal law now protects LGBTQ individuals from workplace discrimination.
  • National Origin – Treating employees differently due to birthplace, accent, or cultural background is unlawful.
  • Genetic Information – Using genetic testing or family medical history to make employment decisions is prohibited.

These characteristics represent classes historically subjected to bias and unequal treatment. Workplace policies and decisions cannot be based on these factors.

What Evidence is Needed to Prove Discrimination?

Bringing a successful discrimination case requires solid evidence of biased policies, unfair treatment, or termination related to a protected trait. Helpful documentation includes:

  • Written policies that are discriminatory on their face, such as age limits.
  • Emails, texts, or recorded conversations demonstrating racial bias, sexual harassment, or hostility towards disabilities.
  • Performance reviews or disciplinary records showing fabricated criticisms or excessive discipline.
  • Witness testimony from others subjected to similar discriminatory acts.
  • Data indicating that pay, promotions, or layoffs disproportionately impacted certain groups.
  • Health or genetic screening improperly used in hiring or firing decisions.
  • Requests for disability accommodations that were denied without due process.
  • Subjective decision-making by managers lacking defined standards.

The more proof obtained, the stronger the discrimination claim will be. An experienced attorney can properly gather this material through the legal discovery process.

Important Steps Before Filing a Lawsuit

Prior to litigation, critical preparatory actions can aid in building a successful case. This includes:

Consult an Employment Law Attorney

Experienced counsel familiar with discrimination law is invaluable in assessing the merits of a potential claim and navigating the complex legal process. They will determine if sufficient evidence exists and help craft the optimal legal strategy.

File an EEOC or State Agency Charge

Before filing a federal lawsuit, employees must first submit an administrative charge with the Equal Employment Opportunity Commission (EEOC) or similar state agency. This complaint triggers an investigation into the alleged unlawful acts. If they find reasonable cause, the agency may pursue settlement or authorize the complainant to file a private lawsuit.

Even without agency action, receiving a Right to Sue notice is a prerequisite to initiating litigation. This notice typically comes after the investigation concludes. State agencies have similar administrative exhaustion requirements.

Overview of the Discrimination Lawsuit Process

If pre-litigation efforts do not resolve the dispute, the next step is filing a complaint and lawsuit in court. Here is an overview of what to expect:

  • A lawsuit is initiated by submitting a complaint detailing the discriminatory acts and the harm suffered. Defendants then have around 21 days to provide their response.
  • Extensive evidence gathering called discovery follows, where each side can demand relevant documents, emails, and other materials via subpoenas. Depositions of parties and witnesses also occur.
  • Many employers will seek to dismiss the case or request an early summary judgment in their favor. Plaintiffs must show sufficient evidence exists to get to a jury trial.
  • If the case proceeds, more discovery and filings occur. The court rules on any outstanding motions and evidentiary disputes right before trial.
  • At trial, plaintiffs present their evidence and witnesses to a jury who will decide if illegal discrimination transpired. Expert testimony is often utilized to analyze data and explain proper standards.
  • If the jury finds in the plaintiff’s favor, the judge will award remedies like back pay, reinstatement, damages, and attorney’s fees. Appeals may still follow.
  • It can easily take 1-2+ years for a discrimination case to get resolved. Costs, time requirements, and stress levels are high. But justice can be gained.

How Do Arbitration Clauses Impact Discrimination Lawsuits?

Many employers now include mandatory arbitration clauses in employment contracts. These provisions require legal disputes to go through private arbitration instead of court. Arbitration tends to favor employers and makes class actions difficult. But experienced attorneys can still aggressively argue discrimination claims in this forum. Arbitration decisions are legally binding, with only limited avenues for appeal.

How Do Arbitration Clauses Impact Discrimination Lawsuits?

Watch Out for Retaliation After Filing Your Claim

Employer retaliation for asserting discrimination rights is sadly common. This may include demotion, pay cuts, shift changes, or increased duties. Retaliation is illegal – make sure to document any reprisals and report them. The EEOC investigates retaliation charges just as they would discrimination.

Potential Remedies Available in a Successful Lawsuit

There are a range of remedies possible if litigation succeeds in proving discriminatory conduct:

  • Compensatory damages to reimburse for lost wages, emotional distress, and other losses stemming from discrimination.
  • Punitive damages may be awarded to punish egregious conduct, sometimes totaling millions.
  • Back pay to recoup unpaid wages, commissions, bonuses, pension contributions and other lost income.
  • Reinstatement to the former job after wrongful termination.
  • Front pay if reinstatement is impractical. This provides future expected earnings.
  • Attorney’s fees and costs are typically shifted from the plaintiff to defendants in a discrimination win.

Monetary awards can be substantial, making the expense and effort of litigation worthwhile. Injunctive relief may also be secured, requiring policy changes to prevent continued discrimination.

Potential Costs and Funding Options for Discrimination Lawsuits

Litigating an employment discrimination case is undoubtedly expensive. Costs will likely total tens of thousands of dollars, if not more. These include:

  • Attorney’s fees: Expect to pay an experienced employment lawyer $200-$500+ per hour.
  • Depositions, expert witnesses, transcripts, copying, and other litigation expenses.
  • Lost income if unable to work due to stress, time demands, or termination.

Funding options include:

  • Contingency fee agreements – Attorneys take a portion (often 30-40%) of any monetary award, but charge no fees if the case is lost.
  • Borrowing money from banks, family, or peers to cover legal costs and living expenses.
  • Crowdfunding via sites like to obtain donations assisting with expenses.
  • Credit cards can help manage costs, but interest expenses will accumulate.
  • Third party litigation funding may provide upfront capital to pursue a case in exchange for a portion of proceeds.

Alternative Dispute Resolution – Pros and Cons

Mediation and arbitration both offer faster and less expensive options than traditional litigation.

Pros: Settlements can often be negotiated at mediation. Arbitration is usually much quicker and cheaper. There are no lengthy appeals.

Cons: Mediation success depends on the employer’s willingness to settle. Arbitration may unfairly favor defendants. Remedy options can be more limited.

While ADR is worth exploring, employees should not feel undue pressure to accept unfair settlements through these methods. Sometimes pursuing full-blown litigation is the only way to get justice.


Suing an employer for unlawful discrimination is a major decision with considerable ramifications. Solid evidence and an experienced attorney are indispensable in increasing the odds of success. Mediation and arbitration should be explored but may not lead to fair resolutions. If discrimination seems evident, proceed cautiously yet resolutely to defend your legal rights. With dedication and perseverance, just compensation can be obtained, deterring future discriminatory acts. You deserve a workplace free from harassment and unfair treatment due to race, gender, age, disability or other protected traits.

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