So You Think Your Employer May Have Unlawfully Discriminated Against or Fired You – What to Do Next

You may have watched workplace harassment, discrimination, and retaliation trainings as part of your office's requirements, but what happens when you think you might actually be experiencing workplace discrimination, unequal treatment, or retaliation yourself?

Every year, thousands of employees, executives, and professionals contact firms like Sanford Heisler Sharp McKnight, recognized nationally for employment discrimination and executive representation, to submit intakes when they are concerned about wrongful termination, workplace discrimination, or retaliation. What happens next after you contact a law firm?

Understanding Your Legal Options

Contrary to what many believe, not every discrimination or employment claim turns into a public lawsuit. In fact, studies show that most employment and harassment cases resolve through confidential settlements or mediation rather than trial. Sanford Heisler Sharp McKnight, recognized as Law Firm of the Year in employment and human rights law, has achieved numerous monumental wins in court: as just a few examples from the past year, the firm achieved a $62 million verdict against a ghost gun manufacturer, the largest jury verdict against a gun dealer in U.S. history, and a $69 million settlement on behalf of the 350,000 beneficiaries in UnitedHealth Group's 401(k) Savings Plan, one of the largest ERISA settlements to date.

But these are publicly filed court cases. Much of the firm's day-to-day work is behind the scenes for all types of people in all types of workplaces and beyond. If the court cases you hear and read about are the boats on top of the ocean, the cases that start and then settle privately make up the dark sea below.

What Happens Before a Lawsuit

If you think you might be experiencing wrongful treatment, workplace discrimination, or a breach of your employment contract, there are many considerations when deciding whether to pursue a lawsuit, private mediation, or administrative action. A very common question people raise when they think they might be experiencing an issue is what options they have, if any, to keep a matter confidential and private. Often, confidentiality is desired on both sides, a person who may have been wronged wants to efficiently move past the incident in an empowered way, and a defending entity often hopes to avoid press or public attention.

Let's say you fill out an intake form with a firm or an attorney, and they speak with you and agree to represent you. What happens next?

It might not be a court filing at all. Many employees and executives must first file with a state administrative agency, or with the U.S. Equal Employment Opportunity Commission (EEOC), before a lawsuit may be filed. Sometimes, though, a nonpublic option exists: attorneys can initiate a private presuit negotiation directly with the defending entity. Because presuits often take place confidentially and without public documentation, few people know what they involve or how they work. So what happens before a lawsuit begins?

Inside a Presuit Process

At Sanford Heisler Sharp McKnight, as soon as a client retains us, our attorneys conduct an in-depth conversation to understand their employment history, experience of discrimination, and goals moving forward. Together, we come up with a plan about how to address their concerns. Often, attorneys will begin a confidential conversation with the attorneys that represent the potential defendants in a case. In some cases, with the client's permission, the firm will reach out to potential witnesses and have conversations with them to learn more about the situation. These may be submitted as informal "declarations," a truthful statement written by a witness or other person.

A common and highly effective technique in presuit or pre-litigation settings is mediation—a confidential process led by a neutral mediator who helps the parties communicate and explore resolution before filing. Very often, mediation is a helpful process to gauge where each party stands in a given case, what settlement options might be on the table, and to learn more information about the other side's opinion of the case. Mediators help bridge gaps, assist the parties in understanding differing positions, and encourage deeper evaluation of their own stance. For many professionals and executives, mediation helps protect privacy, careers, and reputations while still achieving substantive results.

When Litigation Becomes Necessary

Sometimes, private resolution isn't feasible. Litigation, whether in federal or state court, can be long, costly, and stressful, but it can also be the most effective way to hold employers accountable for discrimination or retaliation. You might not even win. But sometimes it is worth it in the pursuit of justice.

That being said, many cases are best handled through private, confidential negotiation or mediation, but some require formal litigation to achieve justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.