This guide summarizes the stages of a typical employment discrimination lawsuit, from identifying the discriminatory conduct to collecting a judgment, in California.
Document Your Experience
If you believe you're experiencing discrimination at work, it is prudent to keep a written log of the incidents of discrimination, including the date and time, who was present, what was said, and how it was communicated to you. If discriminatory actions (such as a negative performance review, an email containing racial slurs, or a written policy prohibiting employees from wearing religious apparel such as a hijab) are communicated to you in writing, keep a copy of the document. It is best to keep this log at home or in a personal data storage device or bag/purse, and not in your desk or on your employer's computer.
Consult An Attorney
An employment attorney will be best suited to advise you whether your employer's conduct presents an actionable claim of discrimination or retaliation. You can locate employment attorneys by searching Avvo or at the California Employment Lawyers Association or contacting your local bar association. Prepare to describe the discrimination or retaliation, provide your documentation, identify witnesses who can support your claim, and describe the damage you have suffered as a result. Discuss with your attorney whether they can take your case on a contingency basis (you pay nothing up front, attorney keeps a percentage of what you recover) or hourly basis (you pay by the hour), on a flat fee, or another arrangement.
Attempt Informal Resolution
You might do this through your attorney, or your attorney may want you to do this yourself through making a formal complaint to your HR department. Your employer may conduct some form of investigation, interviewing the people you identified in your complaint about what they did, said or observed, and may also interview you for additional information. If your attorney reaches out to your employer on your behalf, the company may appoint its own attorney to negotiate a satisfactory resolution. If the company finds that no discrimination took place, or does not wish to address your complaint, you will begin preparing to file a lawsuit.
Exhaust Your Administrative Remedies
The California Fair Employment & Housing Act, as well as the federal anti-discrimination statutes, requires an employee who intends to file a lawsuit for discrimination or retaliation to "exhaust" administrative remedies before the lawsuit can be filed. You do this by filing a written complaint with either the Department of Fair Employment & Housing or, under federal law, the EEOC. At your request, the agency will either investigate your claim on its own, or issue you a "Right to Sue" letter stating that you have satisfied your administrative obligation and can file your lawsuit in court. If you file a lawsuit without this Right to Sue letter, or if you file it after the Right to Sue letter expires, you will not be permitted to pursue your lawsuit.
Once you have exhausted your administrative remedies, your attorney will prepare a Complaint describing the facts that support your claim, the law(s) being violated by your employer, and make a request for damages. This Complaint is filed with the court and served on your employer with a Summons requiring the employer to file a written response in court. Your employer may file a motion challenging your complaint, or an "Answer" to your complaint.
After your employer answers the complaint, you will begin the process of discovery. Both parties have the opportunity to request relevant documents from each other; request that the other side make certain admissions that either help or harm their case; take depositions of you and the primary witnesses for both sides; demand that the other party answer written interrogatories describing the facts, witnesses and documents supporting or harming their case; and issue subpoenas to third parties for appearance at a deposition or production of documents. You will have to prove each element of your claims, and your employer can and will ask you for all evidence you intend to submit in support of your claim. You will do likewise as to your employer's defenses. This process is lengthy and may require your attorney to file or respond to motions asking the court to order that specific items of evidence be produced or be withheld.
Alternative Dispute Resolution
The court will require the parties to participate in some form of alternative dispute resolution. Most often this takes the form of a mediation, where both parties submit summaries of their claims to a neutral third party who works with the parties to attempt to help them reach a mutually agreeable resolution. It may take the form of a neutral evaluation (the parties submit summaries to a neutral, who provides an informed opinion about how the case is likely to turn out) or a non-binding arbitration (essentially a mini mock trial, in which the neutral hears the evidence and makes a decision in favor of one party, but the decision is not binding). Many cases settle at this stage of the lawsuit.
Preparing for Trial
When you have completed discovery and your alternative dispute resolution has not resulted in settlement, your attorney will prepare for trial. This may include filing "dispositive motions" asking the court to grant an early judgment in your favor; engaging experts to provide testimony supporting your claim, preparing jury instructions and trial exhibits, and writing their opening argument and outlining their examinations of witnesses. They will also prepare pre-trial motions asking the court to exclude or include certain items of evidence. Your attorney will likely want to work with you the week prior to trial to prepare you for giving your testimony.
Trying Your Case
Your trial may take 1-2 weeks, and you should expect to be present all day, every day while court is in session. Your trial begins with hearing pretrial motions; then choosing a jury; presentation of preliminary jury instructions; then opening statements from attorneys for both sides. As the plaintiff, the employee puts on his or her case first, through witness testimony, questioning from the attorneys, and admission of exhibits. Once the employee "rests," the employer will put on its case. The employee will have an opportunity to "rebut" the employer's testimony, then the court will hear closing statements. Closing jury instructions will be read, and the jury will go into deliberations. Finally, the jury will render its verdict, determining which party prevails.
If you prevail on your claims at trial, your attorney will request that judgment be entered in your favor. Your attorney will also request that the losing party reimburse you for certain costs incurred in the lawsuit, and will file a motion for attorneys' fees, asking the court to order the losing party to pay your attorneys' fees. If your employer does not pay the judgment, your attorney can assist you with collecting the judgment. You may also engage in post-trial settlement discussions.
If you did not prevail at trial, your employer will ask that you reimburse its costs of the lawsuit. Your attorney may want to file post-trial motions such as a motion for judgment notwithstanding the verdict, motion for new trial, or may want to file an appeal. You will need to settle the litigation costs with your attorney, as well as fees you owe your attorney.
Our Rating is calculated using information the lawyer has included on
their profile in addition to the information we collect from state
bar associations and other organizations that license legal
professionals. Attorneys who claim their profiles and provide Avvo
with more information tend to have a higher rating than those who do
What determines Avvo Rating?
Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.