Documentation is a crucial aspect in employment discrimination and retaliation cases. It helps to provide evidence of any discriminatory or retaliatory behavior, which can then be used to support a complaint or lawsuit.
In many cases of discrimination or retaliation, it can be difficult to prove that it actually took place. This is where documentation comes in. Keeping a record of all interactions, events, and communications related to the discrimination or retaliation can be incredibly helpful in building a case. This includes notes of any incidents, copies of emails, and any relevant documents or recordings. Keeping a journal of the discriminatory or retaliatory behavior is also helpful to help keep track of events and dates and also as evidence of discrimination, retaliation, and the emotional impact on the employee.
Having a clear, concise and accurate record of events is essential in demonstrating a pattern of discriminatory or retaliatory behavior. This can also help to refute any arguments made by the employer that the unlawful behavior was not intentional or was a one-off incident.
In addition to documenting incidents, it is also important to keep records of any efforts to address the discrimination or retaliation. This includes any complaints made to HR or management and any responses received. Documentation not only helps to build a stronger case, but it also shows that the employee took the necessary steps to try and resolve the situation before pursuing legal action. This demonstrates a good faith effort to resolve the issue, which is often looked upon favorably in court. Also, in cases where the employer starts unlawfully retaliating against the complaining employee by, among other things, over scrutinizing work performance, assigning undesirable job duties, writing the employee up or otherwise disciplining the employee (such as placement in a performance improvement plan), or firing the employee, evidence that the complaint was made before the employer started taking such actions is crucial to proving a retaliation claim.
Whenever possible, put the employer on notice and complain in writing (e.g., email). If you have complained verbally, send a follow up email to your manager and HR representative. Remember to be specific about the discrimination you are facing. For example, if you believe your mistreatment is motivated by a protected class (age, disability, race, color, religion, gender, etc.), it is important that you make that clear in any verbal and written complaint. When making an internal complaint about employment discrimination or retaliation, employees should make sure to include the following information in their complaint:
- Detailed description of the discriminatory behavior: The employee should provide a clear and specific description of the discriminatory behavior, including the basis of discrimination (the protected class such as age, disability, race, color, religion, gender, etc.) or retaliation (the prior complaint of discrimination or violation of law, etc.), the date, time, location, and witnesses if any.
- Evidence: The employee should attach any relevant evidence such as emails, texts, or recordings that support their claim of discrimination or retaliation.
- Impact on the employee: The employee should describe how the discriminatory or retaliatory behavior has affected them, including any emotional, physical, or financial impact.
- Relevant laws and policies: The employee should be familiar with the relevant laws and policies that prohibit discrimination or retaliation and include them in their complaint whenever possible.
- Previous attempts to resolve the issue: If the employee has made any previous attempts to resolve the issue with their manager or HR department, they should mention them in the complaint.
- Request for remedy: The employee should state what they would like to happen as a result of their complaint, such as an investigation or disciplinary action against the responsible party.
In conclusion, documentation is a vital aspect of employment discrimination and retaliation cases. It provides evidence of discriminatory/retaliatory behavior, helps to demonstrate a pattern of such behavior, shows a good faith effort to resolve the situation, and helps prove retaliation if it occurs. Not only should you document, but you should also keep copies of any documentation in your personal files and forward any email documentation to a personal email address. The first steps employers usually take when terminating an employee is to cut off access to company email and the workplace.
