Taking legal action

Federal and state laws empower private attorneys to civilly prosecute the discrimination laws against employers and individual discriminators (in some circumstances).  Our firm regularly civilly prosecutes employers and individual discriminators.  We regularly represent employees during all 3 steps, from (1) making an internal report to (2) filing charges (if necessary) to (3) prosecuting the lawsuit (if necessary).

Step 1 (usually):   Making an internal report within the employer:
In some cases, the employee hires a licensed and qualified attorney before the employee makes an internal report within the employer for discrimination.  We strongly recommend that employees consult or hire an attorney before making an internal report.  This is to ensure that the employee’s concerns are communicated in the right way and with the right “language” to higher management or human resources.

Often when an employee files a report without an attorney’s assistance, higher management or human resources will later claim that the report was made to the wrong person, wasn’t clear enough or at least a dozen other excuses as to why the concerns were not addressed.

If the circumstances are serious enough to report discrimination then the circumstances are serious enough to consult or hire an attorney.

You also can expect that the employer will have either an attorney or a highly experienced human resource manager who receives and reviews the report.  The attorney or human resource manager will review and handle the report with the employer’s interests in mind and not your interests in mind.

Step 2 (usually, although this is sometimes Step 1):   Making a formal report (called “charges”) with the state and federal government:
In most cases, the employee hires a licensed and qualified attorney before the employee makes a formal report (called “charges”) with the Missouri Commission on Human Rights (state) or the Equal Employment Opportunity Commission (federal).  We strongly recommend that employees consult or hire an attorney before filing charges.

This is because filing charges with the state and federal government is extremely serious.  The charges may be “under oath” which means a misstatement could result in the crime of perjury.  This is also because charges are the first (and sometimes only) opportunity to clearly state – in legal terms – the employee’s claims.  Filing charges with the state and federal government is similar to filing a lawsuit in Court.

Often when an employee files charges without an attorney’s assistance, the employee’s claims may be dismissed or rejected, or later the employee may be unable to pursue all or some of the claims in Court.

If the circumstances are serious enough to file charges for discrimination then the circumstances are serious enough to consult or hire an attorney.

You also can expect that the employer will most likely have an attorney defending the employer’s interests once you file charges.  If you are not represented by an attorney, you will most likely be fighting an uphill battle against an experienced attorney on the other side.

During the charge phase, the state or federal government will likely investigate the claims.  The investigation may take as little as 30 days or as long as 12 months (or more).  At any point during the investigation, the employee has the right to request that the state or federal government issue a letter approving that the employee can file a lawsuit in Court.  This letter is called the “Right to Sue” letter.  The state or federal government may choose to issue the Right to Sue letter or may choose to deny the request and continue investigating to determine if a Right to Sue letter should be issued.

Final Step:   Lawsuit and Trial
The lawsuit is usually filed in the Court which covers the same Missouri county where the discrimination took place.

An approximate timeline once a discrimination lawsuit is filed:

(1) From filing the lawsuit to 4 months usually involves formally notifying the defendants of the lawsuit and requesting documents (such as employment policies and files, and other records which vary in each case);

(2) From 4 months to 12 months usually involves taking oral testimony (depositions) of the defendants and witnesses.  Witnesses may include co-workers, former co-workers, supervisors, former supervisors, human resource representatives or anyone else with critical information; and

(3) From 12 months to 14 months usually involves the attorneys for each side filing various motions and arguments with the Court.  Motions and arguments may include: (1) what type of evidence the jury will hear, (2) what type of evidence the jury may not hear under the law, (3) which claims the jury will weigh, and so forth.  There are dozens of different motions and arguments that could be filed depending on the case.

(4) The jury trial is usually 14 to 18 months after the lawsuit is filed.  Discrimination jury trials usually last 4 to 10 business days.  Discrimination jury trials usually follow a specific order: (1) jury selection, (2) opening statements by each side, (3) the employee’s case (including witnesses that are both for and against the employee), (4) the employer’s case, (5) the employee’s response (through witnesses) of the employer’s case, (6) closing arguments by each side and, finally, (7) the jury decides the case.

There are other tools that the employee’s attorney may strategically use.

Can I reach an agreement with the employer?
Cases may be resolved by agreement during any of the 3 stages.  There is no rule that says either party must agree to settle the claims.  In other words, the employer may refuse to settle or the employee may refuse to settle.  While we make our best efforts to fairly resolve claims as early as possible, in most cases both our firm and the client must expect that we will take the case to a jury trial.  That said, by recent count approximately 98% of employment cases are resolved before trial.