Evidence to Prove Your Workplace Discrimination Claims
When it comes to workplace discrimination, the success of your case often comes down to one thing: can you prove it happened? This post reviews evidence mistakes to avoid and best practices.
When it comes to workplace discrimination, the success of your case often comes down to one thing: can you prove it happened?
Whether you're trying to get a lawyer to take your case, hoping HR will take you seriously, or filing a complaint with a government agency like the EEOC (the federal agency that investigates workplace discrimination claims), they all want to see evidence. Why? Because if you want to fight discrimination and win, you have to meet something called the “burden of proof”- in other words, you have to back up your claims with solid facts.
If you want to learn more about what it means to satisfy the burden of proof, I recommend reading our post EEOC and the Burden of Proof.
For this post, we’re going to walk you through common mistakes and best practices for collecting evidence and protecting yourself against discrimination.
Evidence Pitfall 1: Not Collecting Anything
You can file a complaint with the EEOC even if you don’t have evidence, but unfortunately most people who do this are turned away before an investigation even begins.
I’ve spoken with so many employees who didn’t save any evidence - not because they didn’t care, but because they were scared of retaliation or thought they had more time. Some never expected things to escalate. Others were caught off guard by a sudden termination.
If the idea of digging through every old email, text, and document feels overwhelming - you’re not alone. So here’s my advice: don’t worry about past events right now.
Instead - start with today.
Document what’s happening now. Take screenshots. Write down what was said and who said it. Then keep doing it each time something new happens.
Yes, it helps to go back later and gather older materials too. But even if all you have is a record of what’s happening from today forward, you’ll be in a much better position than you would be if you never start.
Evidence Pitfall 2: Saving Evidence on a Work Device
You might know exactly where the evidence is, but if it’s locked away on a work device you no longer have access to, it’s as good as gone.
This happens more often than people realize. Someone starts saving proof, but they keep it all on their work computer or work phone. They think they have time. They hope it won’t escalate. And then - they’re out of a job, and out of reach of everything they’d saved.
If you’re in this situation, don’t wait. Make sure you’re saving any evidence on a personal device or secure platform that you control.
If you don’t have a safe place to store documents, consider using JustiProof - it’s designed to help you securely upload and organize evidence while you document your experience and build your timeline.
Evidence Pitfall 3: Nothing In Writing
Companies understand something important about workplace complaints that most employees don’t: if it’s just your word against theirs, they win. That’s because the burden of proof falls on you, the person making the claim.
That’s why sensitive conversations - especially the problematic ones - often happen verbally: Phone calls, in-person chats, or virtual meetings. Unless there’s a transcript of the call there’s no paper trail or evidence to prove what happened.
To protect yourself, you need to create one.
You don’t need to be confrontational. After the conversation, follow up with a simple message - something like, “Just wanted to recap our discussion to make sure we’re on the same page.” In that message, include what was said, what concerns you raised, and any evidence you mentioned.
If they reply to correct anything, great - you now have their response in writing. But even if they don’t respond, their silence can reasonably be interpreted as agreement with your summary.
Either way, you’ve documented the moment—and that makes it much harder for anyone to twist the narrative later on.
Evidence Pitfall 4: Witnesses As The Only Evidence
Witnesses can absolutely help support your case, but they shouldn’t be your only evidence.
Why? Because people are unpredictable. Even when someone says they want to help, they might later back out, especially if they still work for the employer you’re filing against and fear retaliation.
There’s also the issue of credibility. Investigators tend to assume all witnesses are somewhat biased, and if they don’t find your witness credible for any reason, that testimony may carry little weight.
This doesn’t mean witnesses aren’t valuable. They can be… but ideally witnesses are used in addition to written or documented evidence that doesn’t rely on memory or loyalty.
Evidence Pitfall 5: Relying On Employer Evidence
Yes, your employer will likely respond to your claim with their own version of events including evidence that supports their side. But this doesn’t mean they’ll include every email or message relevant to your claims, so that email you know exists and proves your claims are valid - don’t be surprised if it’s missing.
Many employees assume the EEOC will automatically request records from the employer to “see the full picture,” but that’s not how it works. The EEOC is a neutral third party - not your advocate - and they aren’t required to search for evidence or build your case for you.
They can ask for documents, but only if your complaint already shows enough merit to justify a deeper investigation. In most cases, the EEOC makes its decision based solely on the evidence each side provides voluntarily.
So if the only evidence on file is from your employer - or if their version seems more complete or convincing - the outcome is more likely to go in their favor.
Evidence Pitfall 6: Expecting The Employer to Play Fair
Your employer, and especially their legal team, likely understands employment law far better than you do. This is why they’re almost always working behind the scenes to protect themselves before you’ve even decided if you’re going to pursue your claims legally.
For example, before HR approves a termination, they often require a documented paper trail: emails, written warnings, or performance reviews. These aren’t just routine steps - they’re built to defend against legal claims.
Here’s the catch: if your manager emails you about “performance concerns” and then discusses it with you verbally, and you only respond during the call, there’s no record of your disagreement. To an outside investigator, it looks like you received the feedback and didn’t push back.
That’s why it’s so important to respond in writing. If you reply to that email with your side of the story - your concerns, your context - and save it, you now have something that shows your perspective. You’ve documented the moment, and that’s powerful.
Best Practice 1: Catching The Employer In A Lie
Many employers expect employees won’t keep records or collect evidence. That’s why there are so many employee stories about employers leaving out important information or not telling the whole truth during EEOC investigations.
But your employer’s assumptions become your advantage when you can present evidence that contradicts their false statements and proves your employer is trying to hide what really happened.
Best Practice 2: Comparative Evidence Is Crucial
Besides showing the harm you experienced - like being passed over for a promotion or getting fired - you’ll also want to show that someone in a similar position, but not part of your protected group, was treated better. In other words, if someone like you who isn’t in your protected class got a promotion or a better outcome, it helps prove you were treated unfairly.
For example, if you’re a woman who was denied a promotion while two men with the same or even lower experience and performance were promoted, that can be a sign of discrimination. This is even stronger if the people who made the decision can’t give a good reason for the different treatment.
This kind of comparison is very helpful because discrimination today is often subtle and happens over time. In this situation you can point to the different outcomes as evidence of unfair treatment.
Best Practice 3: If It’s Legal To Record, Record
Single-party consent states allow you to record a conversation as long as you are part of that conversation yourself. You’re not required to tell the other individual or ask for permission.
If you live in a single-party consent state you should take advantage of it and record evidence of the problematic behavior.
Note: If you live in a dual-party consent state, it can be used against you if you record another person without their permission. Make sure you look up and verify laws for your state before you record without another person’s knowledge.
Best Practice 4: Collect All Relevant Evidence
In addition to evidence demonstrating discrimination or retaliation, you should also collect evidence that demonstrates you were qualified for the role and / or meeting expectations.
Here is a list of documents you may want to consider saving if you have not already:
Emails and Messages: Any written communication that demonstrates discriminatory comments, unfair treatment, or retaliatory behavior.
Performance Reviews: Document changes in performance ratings, including prior positive performance reviews.
Witness Statements: Colleagues who can corroborate events or behaviors.
Policies and Handbooks: These documents can help establish how your employer defines and enforces anti-discrimination policies.
Timeline of Events: A detailed timeline of incidents, including dates, times, and people involved, to show a pattern of discrimination.
Changes in Work Responsibilities: Evidence of being excluded from meetings, reassigned to less desirable tasks, or stripped of authority.
Pay and Promotion Data: Documentation showing discrepancies in pay or opportunities for advancement compared to peers.
Escalation Communication: Every time you escalate, document what you said and the response (or lack of response) from HR or leadership
If you’re not sure what evidence to capture, JustiProof’s built-in AI assistance will provide customized suggestions based on the incident you described.
In summary…
Evidence transforms your claims into a compelling complaint that cannot be ignored. It strengthens your position, makes HR and legal channels take notice, and gives you a chance to protect yourself and others from future harm.