On many occasions, employees have called me for advice after they have filed a discrimination complaint with Wisconsin’s Department of Workforce Development Equal Rights Division (ERD), or the federal Equal Employment Opportunity Commission (EEOC).
When I review their situations, I find that many of those employees should not, in my opinion, have filed their discrimination complaints. These employees’ matters are not usually frivolous, and there is usually sound basis to think their employers treated them unfairly. However, being treated unfairly does not itself make for a good discrimination claim.
This is one of the many important things an employment attorney could tell you before you file a discrimination complaint- that is, if you ask. There are some other important factors that do-it-yourselfers, given their unfamiliarity with the legal process, are commonly unaware of.
Sometimes, even if an employee has a situation with a discrimination-law “smoking gun” (e.g. a manager’s email making sexist comments about the employee before firing her), it may not be worth pursuing a discrimination complaint for, from a financial standpoint. There can be situations where liability (e.g. manager’s sexism/discrimination) is obvious, but the legal damages/monies potential awardable are relatively low, and the costs of litigation relatively high, based on one’s circumstances.
A competent employment attorney could quickly assess your situation, and may well tell you that your potential discrimination complaint is much better or much worse (from a liability or financial standpoint) than you thought it was.
I am not saying that an individual cannot win a discrimination complaint without an attorney (although that would be very difficult), or cannot initiate a complaint and handle the early ERD or EEOC investigation proceedings on their own (which is less difficult, and manageable for many individuals). Sometimes, employees can, on their own, reach an early and acceptable settlement/resolution. I am also not saying that handling a discrimination complaint on one’s own can never be productive; for some employees, when all their particular circumstances are considered, an attorney could even agree that pursuing a discrimination complaint by oneself could be the only or best option.
So I am not saying it is never advisable for an employee to file a discrimination complaint on her own.
My point is more fundamental: many employees who file discrimination complaints on their own did not research what they were getting into. In metaphorical terms, they put their boat on the ocean and set sail, not knowing where they are going, what they need to get there, when they will get there, and what’s waiting for them if and when they arrive. Sometimes with discrimination claims, the “reward” (assuming one wins) is zero dollars. Wouldn’t you want to know if that’s the case with your case, before starting your case?
Often, individuals considering a discrimination complaint do not consult with an attorney, because they are concerned about legal fees, which they understandably assume would be expensive.
However, for those employees who assume it is not worthwhile to pay an attorney’s consultation fee (ranging anywhere from free to @$350/hour), have you thought about how much it could cost you to proceed without an attorney’s advice? How much time and expense you may be committing yourself to in filing that discrimination complaint? What the potential rewards versus potential costs may be?
For example, many employees file a disability discrimination complaint on their own, without knowing that (even if no attorney fees are paid), in order to pursue a disability claim to the end and win will require the hiring of a medical expert witness, usually a physician, who will usually charge (in my observation) about $500- $1500 per hour for their testimony. Setting aside the medical experts and disability-specific issues, an employee pursuing any type of discrimination complaint (age, race, disability, gender, etc.) who plans to see things through to the end should budget at least a few thousand dollars for costs like deposition expenses, which on average are about $250 to $750 per deposition in my neck of the woods.
Employees who file a discrimination complaint on their own often do not learn of these expenses until they have invested several months’ work into the process. Several months into the process, do-it-yourselfers often become uncomfortable in learning that ERD discrimination proceedings become more formalistic (e.g. the employer sends you “discovery” requests requiring you respond in 30 days- what’s that about?).
In the end, for a discrimination complaint to achieve a successful result for you, you will have to invest time and expense. Some individuals simply do not feel there is value in having a paid consultation with an employment attorney, particularly if they pay hundreds of consultation dollars “just” to learn they have a bad case. While I think that view is a natural and understandable assumption, I disagree. That information- that you have a bad case- may have cost you hundreds of dollars, but having this information may save you thousands of dollars, and several months or years in pursuing a losing discrimination case.
A competent employment attorney can tell you, in advance of you filing a discrimination complaint, whether that complaint is likely to have value, and what the likely outcomes are. If you pay consultation fees and learn the potential complaint is a “bad” one, then my view, as mentioned, is that legal advice has significant value.
From an employees’ perspective, it is reasonable to expect value from the attorney you consult with. You should be able to trust that the attorney is providing you with competent advice based on legal experience and knowledge (as opposed to advice from a jack-of-all trades attorney who occasionally practices employment law, along with 25 other practice areas, and who charges full hourly rates for partially-informed employment law advice).
I don’t pretend to have all the answers as to all circumstances for which employees should file discrimination complaints or not, or for which they should have attorneys representing them or not. But I’m in a position where I see repeated reminders of how things can go wrong- for example, having employees first call me within a week before their ERD hearings, and me telling them they pursued discrimination complaints for over a year that I would have told them on day one to consider not pursuing.
Based on my perspective, I’d suggest potential do-it-yourselfers ask yourselves the following questions: (1) What’s my deadline- can I even file a discrimination complaint, or any other legal complaint? (2) What do I want to achieve ? (3) Can a discrimination complaint achieve that? Am I sure- does the law say I can achieve that? (4) How long is the complaint process likely to take? (5) How much is the process likely to cost me? (6) What are my risks of winning versus losing? (7) What are the typical results for others with cases like mine? (8) Are my likely investments of time and expense worth making, when considered versus the risks and the likely results?
And last, (9) what is it worth to me to know answers to these questions about possibly proceeding with a discrimination complaint?
DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney (and an employment attorney for employment matters).