Key Takeaways
- Document discriminatory incidents immediately with specific dates, times, locations, quotes, and witnesses
- Use personal devices and accounts to preserve evidence outside employer control
- Collect comparative evidence showing disparate treatment of similarly situated employees
- Avoid illegal recordings, company policy violations, or premature evidence sharing
- Follow internal complaint procedures to create documentation and preserve retaliation claims
- Organize evidence chronologically to demonstrate patterns and causation
- Consult experienced employment counsel to evaluate evidence and develop legal strategy
Why Documentation Matters in Discrimination Cases
Employment discrimination cases often become credibility contests between employees and employers. Contemporary documentation created during the alleged discrimination carries significantly more weight than later recollections. Todd M. Friedman’s employment law practice has seen well-documented cases result in substantially higher settlements and verdicts compared to claims relying solely on testimony.
California courts evaluate discrimination claims using the burden-shifting framework established in McDonnell Douglas Corp. v. Green. Strong documentation helps employees establish their prima facie case and rebut employer defenses of legitimate, non-discriminatory reasons for employment actions.
What Should You Document?
Discriminatory Statements and Conduct Record the exact words used, who said them, who witnessed them, the date, time, and location. Document context surrounding discriminatory remarks—were they made during performance reviews, promotion discussions, or casual conversation?
Example: “On 3/15/25 at 2:30pm in the break room, Manager John Smith told me ‘we’re looking for someone younger and more energetic for the promotion’ in front of Sarah Jones and Mike Williams.”
Employment Actions and Pattern Evidence Track all significant employment decisions: performance reviews, promotion denials, pay adjustments, shift changes, disciplinary actions, and job duty modifications. Look for patterns—are employees of your protected class consistently treated differently than similarly situated employees?
According to DFEH guidance, comparative evidence showing disparate treatment strengthens discrimination claims. Document how colleagues outside your protected class received different treatment for similar conduct or qualifications.
Performance Documentation Preserve all positive performance reviews, emails praising your work, awards, recognition, and objective metrics demonstrating job performance. This evidence counters employer claims that adverse actions were performance-based rather than discriminatory.
Medical and Accommodation Records For disability discrimination cases, maintain medical documentation supporting accommodation requests, correspondence with HR about accommodations, and evidence of your ability to perform essential job functions with or without reasonable accommodation.
Complaint and Reporting Records Document every discrimination complaint—internal reports to HR, written grievances, emails to supervisors, and external agency filings. Include dates, who received complaints, and any responses or inaction.
How to Document Effectively
Create Contemporary Written Records Don’t rely on memory. Email yourself detailed notes immediately after discriminatory incidents. California is a two-party consent state for recordings, meaning you generally cannot secretly record conversations, but written notes created contemporaneously are admissible evidence.
Use Personal Devices and Accounts Document on personal devices using personal email accounts, not company systems. Employers may argue they own work email content and can delete files on company devices. Forward important work emails to personal accounts for preservation.
Be Specific and Objective Include dates, times, locations, exact quotes when possible, witness names, and factual descriptions. Avoid emotional characterizations—”Manager called me lazy” is weaker than “Manager said ‘you people are lazy’ on 3/15/25 during team meeting.”
Preserve Electronic Evidence Screenshot text messages, preserve emails, save social media posts, and back up electronic communications. Print physical copies as redundancy since digital files can be deleted or devices can fail.
Maintain Organized Records Create chronological files with clear labels. Todd Friedman’s firm has seen cases strengthened significantly when clients provide organized timelines showing discrimination patterns over months or years.
What Evidence Strengthens Your Case?
Comparative Evidence Documentation showing employees outside your protected class received preferential treatment for similar conduct or credentials creates powerful pattern evidence. Performance reviews, promotion records, and disciplinary history of comparable employees support disparate treatment claims.
Temporal Proximity Evidence of adverse employment actions shortly after protected activity (discrimination complaints, FMLA requests, pregnancy announcements) suggests retaliatory motive. Document the timeline between protected conduct and employer actions.
Pretext Evidence Records demonstrating employer’s stated reasons for adverse actions are false or inconsistent strengthen discrimination claims. Shifting explanations, contradictory documentation, or deviation from standard procedures suggest discriminatory motive.
Witness Statements Identify colleagues who witnessed discriminatory conduct or can confirm disparate treatment. While you may not be able to compel witness cooperation before filing a lawsuit, knowing who witnessed events helps your attorney develop case strategy.
Common Documentation Mistakes to Avoid
Violating Company Policies Don’t remove confidential documents, access unauthorized systems, or violate data privacy policies while gathering evidence. Illegally obtained evidence may be inadmissible and can expose you to discipline or counterclaims.
Illegal Recording California Penal Code Section 632 requires two-party consent for recording confidential communications. Secret recordings without consent violate state law and create criminal liability. Don’t record conversations without explicit consent from all parties.
Delayed Documentation Notes created months after incidents carry less weight than contemporary records. Document immediately while details are fresh and before memory fades or becomes influenced by subsequent events.
Emotional or Conclusory Notes “Manager discriminated against me” provides no useful information. Document specific facts—what was said, what actions were taken, who was present, when it occurred. Let evidence speak for itself rather than drawing legal conclusions.
Sharing Documentation Prematurely Don’t circulate discrimination evidence to coworkers or post about workplace issues on social media. Employers monitor employee social media and may use posts to undermine credibility or develop defense strategies.
When Should You Report Discrimination Internally?
Utilize Company Complaint Procedures Most employers have anti-discrimination policies requiring internal reporting. Following these procedures (1) creates documentation of the complaint, (2) triggers employer’s duty to investigate, and (3) preserves retaliation claims if employer responds adversely.
Document the Reporting Process Submit written complaints via email to create records. If reporting verbally, follow up with written confirmation: “This email confirms our conversation on [date] regarding [discrimination details].”
Know Your Rights During Investigations California law prohibits retaliation against employees who oppose discriminatory practices or participate in investigations. Document any adverse treatment following complaints—schedule changes, increased scrutiny, exclusion from meetings, or hostile treatment from supervisors.
How to Preserve Evidence for Legal Claims
Understand Preservation Obligations Once you hire an attorney, employers have legal duties to preserve relevant evidence. However, before formal representation, proactively preserve evidence employers might delete or destroy.
Back Up Digital Evidence Forward work emails to personal accounts, screenshot electronic communications, save digital files, and maintain offline backups. Use cloud storage for redundancy.
Photograph Physical Evidence Photograph workplace postings, handwritten notes, performance reviews, or any physical evidence of discrimination. Date-stamped photographs create verifiable records.
Create Detailed Timelines Organize evidence chronologically showing the progression of discriminatory conduct. Timelines help attorneys identify patterns, establish causation, and develop case themes.
What Happens After You Document Discrimination?
Filing Administrative Charges California requires filing complaints with the Department of Fair Employment and Housing (DFEH) or Equal Employment Opportunity Commission (EEOC) before filing lawsuits. Your documentation supports these administrative filings and shapes agency investigations.
Statute of Limitations California provides three years to file DFEH complaints—significantly longer than federal 180-300 day deadlines. However, prompt filing preserves evidence and prevents employer defenses based on delay.
Attorney Evaluation Employment attorneys evaluate cases based on evidence strength. Well-documented claims demonstrating clear discriminatory patterns result in stronger negotiating positions and higher settlement values. Todd M. Friedman’s practice has secured nearly $1 billion in client recoveries, with documentation quality directly impacting case outcomes.
Strong documentation transforms workplace discrimination from “he said, she said” into compelling legal claims. Todd M. Friedman’s Los Angeles employment law firm represents discrimination victims throughout California with a track record of consecutive Super Lawyer recognition and AV Preeminent ratings. Schedule a Free Consultation to review your documentation and discuss your legal options.
