If you were fired or forced to quit your job because of illegal discrimination or harassment, what are your chances of getting compensation from your former employer for your lost wages and other damages? We surveyed readers who recently had discrimination or harassment claims to ask about their experiences and how their cases turned out. Here’s what we learned.
Success Rates in Discrimination or Harassment Cases
Only about four in ten readers (41%) received an out-of-court settlement or a court award in their wrongful termination cases based on illegal discrimination or harassment. While this relatively low success rate might seem surprising, there could be a couple of explanations for these results.
First, employment discrimination and harassment cases are harder to prove than you might think. For one thing, the discrimination or harassment must be based on a characteristic that has been protected under federal or state law. Federal law prohibits employers with 15 or more employees from discriminating against workers based on certain protected characteristics like race, national origin, gender (including pregnancy), religion, age (40 and older), disability, citizenship status, and genetic information. In addition, most states have laws barring workplace discrimination, and some of these laws protect additional characteristics like sexual orientation, gender identity, marital status, and status as a domestic violence victim. So, if you are being treated unfairly because of favoritism or nepotism, you won’t have a successful discrimination claim.
The same goes for harassment. Many employees have the mistaken impression that harassment is against the law whenever it leads to a hostile work environment. But harassment is only illegal if it’s based on a protected characteristic (such as being a woman)—not when a boss simply takes a disliking to you and makes your life miserable. The harassment must also be severe or pervasive enough to affect the terms of your employment. Occasional teasing or isolated incidents usually do not give rise to a harassment case. Based on answers to certain survey questions, it appears that some readers complained of harassment that may have been unfair but wasn’t illegal.
Secondly, our survey showed that—beyond that threshold issue of whether the termination was due to illegal discrimination or harassment— two factors made a difference in the outcomes of these cases: whether the employee hired a lawyer and what type of evidence the employee had.
How Having a Lawyer Affects Outcomes in Discrimination or Harassment Claims
Our survey showed that nearly two-thirds of readers who hired attorneys for their discrimination or harassment cases received a settlement or award, compared to just over a quarter of those who didn’t have legal representation. So having a lawyer more than doubled the success rates.
Lawyers also make a difference in how much compensation readers received. Our survey showed that readers who hired an attorney to help with their discrimination or harassment cases received average settlements of $30,700—more than four times higher than what readers without legal representation received ($7,500 on average).
Of course, it costs money to hire a lawyer. But even after subtracting 29% for attorneys’ fees (the average percentage that all of our readers with wrongful termination claims paid for legal fees), those who had lawyers ended up with about $14,300 more for their discrimination or harassment claims than unrepresented readers. (For more information, see our article on how much attorneys charge in wrongful termination cases.)
The advantage of having a lawyer plays out in several ways. Attorneys can help you gather solid evidence of illegal discrimination and/or harassment. They’re also skilled at negotiating, making them more likely to get your former employer to settle for a reasonable sum. Lawyers also understand the administrative hurdles that must be cleared in these cases—for example, filing an administrative claim with the federal Equal Employment Opportunity Commission, which is required before you can file a lawsuit. Because wrongful termination lawyers usually charge contingency fees (meaning that they only get paid a percentage of what the client receives in a settlement or award), they screen cases and generally accept only those with a decent chance of success. Employers know that, so they’re often more likely to offer a settlement when a former employee has an attorney who’s ready and able to file a lawsuit.
How Evidence of Discrimination or Harassment Affects Outcomes
It can be difficult to prove that you were fired because of your ethnicity, disability, age, gender, or other protected characteristic. These days, employers seldom announce the fact that they’re discriminating based on race or gender or attempting to save money by firing older workers and those with disabilities. That’s why it’s important to gather different types of evidence to help show that you were fired or forced to quit because of illegal discrimination or harassment. For example:
- an email from your boss denying a reasonable accommodation for your disability, making some remark that shows your age was a factor in your termination, or stating that you were fired for speaking Spanish with coworkers
- good performance reviews that contradict your employer’s claim that you were fired for doing poor work
- emails from coworkers with repeated racist jokes or sexual innuendo, along with copies of your complaints to management about the problem
- testimony from coworkers who witnessed sexual harassment
- statistical evidence showing how many older workers were laid off but later replaced by younger employees
- circumstantial evidence of suspicious timing, such as an email showing that you told your boss you were pregnant only a week before you were fired, and
- documentary evidence of different treatment for employees whose only significant distinction was their race, gender, age, or other protected characteristic, such as disciplinary records showing that white employees received warnings for being late to work, while a Muslim worker was fired for the same offense.
Not surprisingly, our survey showed that the more evidence readers had to back up their claims of illegal discrimination or harassment, the more likely they were to receive a settlement or award. Nearly two-thirds (63%) of readers with both written evidence and witnesses received a settlement. The type of evidence mattered: Half of those who had only written evidence resolved their cases successfully, compared to 28% of those who only had witnesses to back up their discrimination or harassment claims.
The importance of evidence is reflected in our readers’ comments. When we asked them to share their advice to others with wrongful termination claims, a common refrain was “Document everything and find a lawyer quickly.” An attorney can help you identify possible sources of evidence, tell you whether it’s okay to make copies of work emails or documents, take steps to ensure that the employer doesn’t get rid of evidence, and—once you’ve filed a lawsuit—make formal requests for copies of documents, emails, and other evidence in the employer’s possession. (For more information, see Nolo’s article on gathering documentation of wrongful termination.)