It’s an unfortunate reality that every year in the United States, thousands of people experience unfair treatment, discrimination, and harassment in their workplaces. Unfortunately, these individuals are put in the situation of feeling isolated and targeted in their workplaces due to their protected classes and face the additional challenge of uncertainty when it comes to securing the evidence they need to prove the extent of the mistreatment they’ve experienced.

Proving unfair treatment in the workplace is often complex, and direct evidence may not be readily available. When an employer knowingly treats some employees differently than others due to their protected personal qualities, the affected employees may need to essentially rely upon one another to prove what has happened to them. Suppose you are wondering how you document unfair treatment at work. In that case, the best methods typically involve carefully recording your experiences, gathering physical evidence you need to prove what has happened, and obtaining statements from coworkers and peers who can substantiate the unfair treatment you experienced.

Direct and Circumstantial Evidence

The two forms of evidence that come into play in most cases involving unfair treatment at work include direct evidence and circumstantial evidence. Direct evidence is rarer as most employers who knowingly treat employees differently based on their protected qualities will do their best to hide this behavior. However, if you were to receive an email saying you are not allowed to attend a company event because of your status or that you were being passed over for promotion due to some other protected personal quality, this would constitute direct evidence of unfair treatment. In addition, verbal statements from the employer could also qualify as direct evidence.

Circumstantial evidence is less reliable than direct evidence but more readily available. Circumstantial evidence essentially demonstrates that unfair treatment more likely than not occurred due to your protected class. An experienced attorney can advise you as to what may constitute circumstantial evidence in your situation.

Testimony From Others in Your Workplace

Suppose you intend to prove that you experienced unfair treatment in your workplace. In that case, you will likely need to gather evidence of both the adverse treatment you experienced, and the different preferential treatment afforded to employees who do not share your protected qualities. Part of your documentation process should be securing statements from coworkers who share your concerns and can offer accounts of their own negative experiences in the workplace. It’s also essential to save and catalog any correspondence between you and other members of your workplace to establish unfair treatment. For example, if your workplace uses group chat services and other employees discuss disparate treatment from an employer, saving this conversation could prove useful if you need to take legal action in the near future.

Establishing Disparate Impact

It’s possible to experience unfair treatment in your workplace due to a seemingly neutral policy or rule enforced by your employer that has an adverse and disparate impact against you because of your protected qualities. For example, some employers could mandate required work hours that conflict with your religious beliefs, or you could be penalized for failing to abide by a company policy that you are physically incapable of following due to your personal protected qualities.

To succeed with a claim of unfair treatment due to disparate impact, you must prove that the policy in question adversely affected members of your protected class more than others. When an employer is challenged on a rule or policy that inflicts disparate impact on a certain protected class, they must provide some type of legitimate business reason to justify the rule or policy as stated. For example, suppose the employer responds to a claim of disparate impact by stating a specific business reason behind the rule or policy. In that case, the affected employee will then need to provide evidence that the same purpose could have been achieved without causing a disparate impact on employees of a specific protected class.

Best Practices for Proving Unfair Treatment

If you intend to stop unfair treatment in your workplace, or if you intend to take legal action after unfair treatment has adversely affected you, the documentation process is just one step in solving this problem. A few best practices will help you prove unfair treatment and secure a satisfactory resolution:

  1. Document everything. As previously mentioned, keeping clear and organized records of unfair treatment is essential. You should make copies of correspondence between you, your coworkers, and your employer. It’s also advisable to make copies of statements from your coworkers who support your claim.
  2. Obtain copies of company policies and handbooks. If you need to prove disparate impact, you will need to provide your employment attorney with copies of your employer’s workplace materials, such as employee handbooks and policy manuals that clearly state the policy or rule in question.
  3. Make constructive suggestions. No employee should be subject to unfair treatment in the workplace, but your experiences may not result from malicious intent. For example, you could have experienced unfair treatment because your employer was unaware of your protected class or that a company policy caused a disparate impact on you or other members of a protected class. Asking your employer for reasonable changes and clearly explaining your reasons could potentially resolve the problem before you need to take further formal legal action.
  4. Report the unfair treatment. It is generally best to make a good faith effort to resolve issues of unfair treatment through internal channels before resorting to legal action. Doing so may ultimately prove fruitless, but the record that you attempted to address your concerns through appropriate internal channels will work in your favor if you need to take further legal action in the future.
  5. Consult an attorney. One of the most critical steps to take if you have experienced unfair treatment at work is to consult an experienced employment attorney. Your legal team will help you determine your best available legal options and guide you through the process of securing the documentation you will need to substantiate your claim of unfair treatment.

Documenting unfair treatment in the workplace can prove very challenging in some situations. An employee who has experienced any form of unfair treatment is likely to feel alienated and uncertain when it comes to putting a stop to the adverse treatment they’ve experienced. California Employment Counsel, APC, can provide the guidance you need when you are unsure how to document the unfair treatment you’ve experienced at work. Contact us today to schedule a consultation with our team and find out how our legal services can assist you.