Dr. Jillian T. Weiss

Where to File an Employment Discrimination Lawsuit

Filed By Dr. Jillian T. Weiss | February 04, 2013 12:45 PM | comments

Filed in: Living
Tags: anti-gay discrimination, anti-trans discrimination, employment discrimination, legal cases

When you experience discrimination at work, first stop should be HR, though you have to be careful about how you approach it. But what happens if HR doesn't solve the problem after a reasonable period of time? Your next stop is an employment discrimination lawsuit. My best advice for that is to find bigstock-Labor-Laws-in-the-Workplace-as-15769142.jpga lawyer who has experience in the area, and is going to charge you a fee you can afford, or, better yet, will take the case on a contingency, meaning no legal fee unless an award is given.

You should keep in mind that a contingency fee is a business arrangement. That means that the lawyer who accepts a case under such an arrangement is betting that there will be an award, and that it will be enough to cover the time and office expenses spent on the case. This lawyer is generally not on a crusade for justice, except to the extent that it means getting you some compensation.

It is a good idea to contact legal organizations, like Lambda Legal, the ACLU, the Transgender Law Center, or the Transgender Legal Defense and Education Fund, to see if they are interested in the case. Their resources are limited, however, so they only take on cases that have a good chance of success and fit within certain legal priorities that the organization considers most important for the community. They can take on only a fraction of the cases flooding into their offices. Even they, however, won't necessarily want to take the case to the U.S. Supreme Court. Some cases are just better off being settled, because litigation is always a roll of the dice.

What happens if you cannot get a lawyer to file for you? Then you have to decide whether you want to file on your own. Keep in mind that this will require a lot of time and effort to do well, so make sure you're serious about this. There's a long road after filing your complaint, and no employer is just going to roll over and play dead after you file.

As to filing, you must first decide where you are going to file your complaint. The United States has a split between federal and state laws. The U.S. governmental system is not like most countries. Most counties have a single national government, and the local agencies are subdivisions of and part of the national government. In the U.S., however, there are three overlapping governments: a federal government, fifty state governments, and about eighty-thousand municipal and county governments. You could decide to file in any one of these, or all of them.

How do you decide which government to call upon to redress your grievances? There are a few factors to consider. First, which of these has the most effective law regarding your issue? For example, the federal law does not prohibit sexual orientation discrimination in private employers. However, the federal law does prohibit discrimination based on gender expression. There have been a number of federal cases that found in favor of an employee who was harassed, demoted or fired because of the perception by other employees that they did not fit the stereotypical behavior expected of their sex. Although there is no law prohbiting sexual orientation discrimination, men perceived of as unmasculine or feminine, and women perceived of as unfeminine, or masculine, and discriminated against as a result, have won their cases on sex discrimination grounds. The federal law is particularly good because it permits punitive damages in cases where intentional or reckless injury is shown, which some state laws do not. In addition, the federal law does not limit noneconomic damages, which refers to mental pain and suffering that cannot be measured exactly. But the federal law is also more difficult in some ways, because you may have to show some gender stereotyping occurred, which could be difficult.

On the other hand, some states have excellent laws, like New Jersey, for example, which explicitly prohibits discrimination based on sexual orientation and gender identity or expression.

Sometimes, a state has no law explicitly outlawing sexual orientation or gender identity discrimination, but there has been a court ruling finding that other laws cover these issues. If so, you could go to state court and recover.

Also, there are counties and cities that have excellent laws, like New York City. Other city laws, however, are relatively toothless, and can only perform a non-binding mediation with the employer. The pitfall there is that if you go through that process, and fail to file on the federal or state level within the time allowed by law for such complaints, then you lose your rights.

Sometimes, depending on where the events happened, and which court or agency you plan to use, you are required by law to file first with an administrative agency, like the Equal Employment Opportunity Commission (for a federal claim) or the California Department of Fair Employment and Housing (for a California state claim). These agencies are staffed largely by non-lawyer investigators, who have been trained to look for the facts necessary to uphold a claim. In other places, like New Jersey, you can file in either the New Jersey Attorney General's Office, Division of Civil Rights, or go directly to state court. It is usually fairly easy to look up on the internet whether your state has a similar administrative agency.

However, there is a major pitfall here. If you file, for example, with the New York Division of Human Rights, the courts have interpreted the law so as to preclude you from ever filing in New York state court. Also, the New York Division of Human Rights is famous for its backlogs and scanty investigations. In New Jersey, you cannot file a claim with the Division of Civil Rights and at the same time file with the state court. That is something to check out before you decide where to file.

All this means that you should conduct a careful search for the laws and agencies that exist on federal, state, county and city levels for your area before deciding where to file. I note that filing a complaint with an administrative agency is generally much easier, as they usually allow complainants to write a narrative in their own words, and use trained investigators to solicit the information that is important to the claim. You can also call them for advice and a meeting. Courts and court clerks, however, do not provide advice on how to file and will not meet with you. They require complaints in very specific legal formats, and they must contain all sorts of information, such as why the court has jurisdiction. While courts generally permit pro se plaintiffs -- nonlawyers who file their own cases -- more latitude, that only goes so far. If you are going to file in court on your own, you should think honestly about your ability to research the court's requirements on the internet, your ability to read fairly complicated legal materials, and your ability to write and follow directions. Many courts have pro se manuals designed to help people file their own complaints. These are extremely useful, but they are somewhat complicated and lengthy, so keep that in mind.

The other thing to keep in mind is that the time allowed for filing is fairly short, sometimes only a few months. You should research what these time frames are. The legal term is "statute of limitations" and they cause a lot of headaches. One important note, however, is that some types of harassment or discrimination are called "continuing actions," which means that if you have an event of harassment or discrimination within the time frame, you can, in some instances, include older events if you can show that they are related. You should not assume that all older events are automatically ignored.

Note: I note that the preceding is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction, after hearing all of the facts and circumstances in a particular case. The following is drawn from my generalized experience, and you should not assume that it is going to be beneficial to you in your particular situation. My intent is only to be helpful in formulating your own plan of action in a general way. Employment discrimination graphic via Bigstock.

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