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What type of proofs are beneficial in a EEOC - DFEH employment discrimination case?

Santa Clara, CA |

If I were to file a EEOC / DFEH employment discrimination case, I was wondering what proofs are more beneficial in this type of situations.
Reality is that statements in writing - speaking about discrimination situations will be most likely be denied by employers to avoid being held liable. I wish there was a lie detector, or a way to prove 100% who is telling the truth, and get real justice. Emails would be useful for proofs, but in most cases discrimination remarks are mostly done via voice conversations.

a) Can recorded voice conversations, be used as proofs, will that be beneficial(in case you caught the interviewer doing discrimination remarks or asking illegal questions)?
Sometimes applicants like to record themselves for practice purposes, for review, or for doing better in next

or for doing better in next interview rounds. b) What other proofs will be beneficial for a plaintiff - applicant in an employment discrimination case? Thanks in advance

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Attorney answers 5


Try detailing a list of incidents where you can show how you are treated differently from other persons who are not in the same protected class you are in, particularly if there appears to be no business related reason for the adverse treatment. If there are examples of others treated less favorably (for example, men given preference over women; Caucasians preferred over minorities, etc.), cite those as examples.

You should know that it is illegal, in California, to record a private conversation without the permission of the other party to the conversation and, most likely, it would not be admissible in court. Be careful.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.



Thanks a lot for your time and advice.


To avoid the he say she say argument, they say one thing you say another, any evidence that is admissible in court is credible. What you need to do is find a co-worker, security guard, anybody at your employment who can verify and validate what you have to say is true. Have you been treated by medical professionals. i.e. psychiatrists in regard to the dilemas or problems cause by your work site? Whoever else has real knowledge about your situation you present these facts to the Federal and State Regulatory agencies and they will do their investigation. As stated by previous counsel, you cannot tape record a private conversation without the other party being advised of the same.

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To follow up on the previous answers, DFEH/EEOC has limited resources and only seriously looks into a very small amount of claims - these are usually the most egregious harassment and discrimination claims. You should contact an employment attorney in your area to have your case evaluated and get competent prospective on whether it's worth pursuing.


Arkady Itkin
San Francisco Employment Lawyer


I think it is important to understand that it is VERY unlikely that the DFEH or EEOC will actually investigate your case or do anything about it. Their main purpose is to provide Right-to-Sue Letters to allow parties to file a lawsuit. They act as gate keepers. In something like this, your best bet is really to contact an experienced employment attorney for a consultation.

Best of luck to you!


Written documentation of the discriminatory behavior is ideal, but extraordinarily rare as the questioner notes. We live in an era of rampant concealed, subconscious, and unconscious discrimination, and people make decisions that are biased by stereotypes every day without realizing it. For extensive discussion on this and to take a test that purportedly reveals your own subconscious biases, visit

At this site, you'll learn that Harvard a developed the "Implicit Association Test" which it claims proves that the vast majority of us harbor subconscience biases based on everything from race to our favorite M & M color. It is very interesting to probe into.

In any event, because you will be unlikely to find a supervisor in this day and age foolish enough to call you an epithet, let alone put it in writing, your options for gathering evidence are pretty limited.

You must extensively document, for yourself, the ways in which you are treated differently from those outside your "protected class" ("protected classification" is the legal term in anti-discrimination statutes and refers to characteristics traditionally subject to discriminatory treatment, such as race, gender, age, disability, medical condition, sexual orientation (in California), ethnicity, skin color, Union activity, whistleblowing activity, and religion).

The best way to do this is to keep a journal of all the instances in which you feel harassed, threatened, intimidated, disciplined, or otherwise mistreated because of your protected class status. Write down the date, time, and details of each such incident. Most of my clients tell me that, in addition to helping them later remember all the details of what occurred, this proves very cathartic for them because they get to vent what is happening to them, even if only to a piece of paper. When and if you are ready to retain an attorney, those notes will greatly assist the attorney in evaluating and potentially prosecuting your case.

It is also possible to proceed in a discrimination suit on a "disparate impact" theory which uses statistical data to show that a protected classification must have played a role in employment decisions, such as by demonstrating that African-American applicants for a job are selected at 80% of the rate of Caucasian applicants. The burden of proof then shifts to the employer to explain the statistical anamoly on non-discriminatory grounds.

In sum, it is difficult to prove up a discrimination case in the 21st century. To maximum your chance of success, you should consult with a local employment lawyer as soon as begin experiencing difficulties at work. They can guide you in the evidence collection process as events unfold, help you prepare written correspondence/responses to the employer in a way that preserves your rights, and generally serve as a helping hand a good listener while you navigate these murky waters.

One last note from a simple country lawyer: My grandmother used to tell me "the best revenge is living well," and it took becoming a lawyer for me to truly understand what she meant by that. Now this is something I tell every one of my clients. One of the best ways to strengthen your case is to remain patient, calm, diligent, and professional. Do your job to the best of your abilities and give them no ammunition they can use against you later. Remain courteous in all your interactions with your employer, regardless of how unreasonable or discourteous they have been. Be a model employee they cannot possibly subject to reprisal or discipline without demonstrably treating you unfairly. In two simple words, live well.

The information provided in this Answer is offered for educational purposes only and should not be construed as legal advice or counseling. You should not rely on the information herein in assessing your legal rights, determining to take legal action, in any formal papers filed in a legal or administrative forum, or in any way whatsoever. Moreover, this Answer does not create an attorney-client relationship - only the formal, written agreement required by the State Bar of California can do that. You should always have a full consultation with a lawyer if you are contemplating any sort of legal action.



Thanks a lot for your time and advice.

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