The Employee Handbook

1: I got fired/laid off/demoted. How do I know if it was discrimination?

You’ve identified the first question any attorney is going to ask: what actually happened to you? Getting fired is obviously an “adverse employment action,” but that’s not the only one. As an initial inquiry, it can be helpful to simply identify whether you were treated unfairly, or worse than a similarly-situated employee. The law covers a broad spectrum of poor treatment—not just terminations. 

Assuming you have that box checked, the question then becomes what facts would tend to show that a given adverse employment action was taken because of a protected characteristic. Generally speaking, protected characteristics are things about yourself that are essential to who you are or which you cannot change. In Massachusetts, those include things like:

• Race, Color, and National Origin

• Religion

• Sex, Gender, and Sexual Orientation

• Age (40+)

• Disability

• Veteran Status

• Genetic Information

You don’t have to be a lawyer to realize that virtually everyone is a member of a protected class—the concern is connecting that protected status to the adverse employment action. 

Discrimination rarely announces itself. You’re unlikely to be told that you are being paid less because you are a woman, that you are being given worse shifts because you took sick leave, or that you are being laid off because you are “too old.” So be on the lookout for more subtle clues. An attorney can help you sort through the facts and find the hidden thread.

2: Doesn’t “at-will” mean I can get fired anytime for any reason?

You’re missing an important qualifier. At-will employment (i.e. employment without a contract that states specific reasons for termination) means that you can be fired for “any reason or no reason at all” as long as that reason is not illegal. That’s true even if there are other non-discriminatory reasons at play. Make no mistake: employers can still terminate employees who are underperforming. But they have to make sure that underperforming employees are being treated equally. If your colleagues are getting a free pass while your every move is being scrutinized, your boss has to articulate a non-discriminatory reason why.

That’s usually hard for them to do, and it’s why they have lawyers and human resources on hand to help justify those decisions—usually after the fact.

They’ll be quick to blame you. They may even have a point. But it doesn’t necessarily mean they didn’t break the law. That’s why you want your own attorney to advocate for your side of the story.

3: What documents should I be gathering?

Litigation lives and dies based on documents, and the lion’s share of the time spent litigating a case is dedicated to sorting through the myriad documents that could be relevant to a claim. But at the outset, it helps to have important documents on-hand so your lawyer can hit the ground running. Even if you’re not anticipating any issues, good employee hygiene means holding onto the following:

Be careful about creating your own documents. Diary/calendar entries, emails/texts to yourself or others, even documents created on your behalf (like medical records or therapist’s notes) can come into play down the line. The sooner you retain an attorney, the sooner your communications can be protected by the attorney-client privilege.

4: What is the deadline for filing a claim?

That depends on the type of claim you’re bringing. A complaint can have multiple causes of action (e.g. discrimination, retaliation, breach of contract, defamation), and each of them can have its own statute of limitations. Finding out what causes of action could be asserted in your case and the applicable statues of limitations is the first thing a lawyer is going to do when assessing your story.

That being said, if the claim is for discrimination under Massachusetts state law, then it first has to be filed with the Massachusetts Commission Against Discrimination (MCAD) within 300 days from the date of the last act of alleged discrimination. There is some nuance to this—discriminatory acts that occurred outside of that 300-day window can be brought in under the “continuing violation” doctrine—but there is rarely any benefit to waiting to file at the eleventh hour. Remember, a complaint can always be amended if any further discriminatory acts occur.

Here’s the rule of thumb: it’s better to speak with an attorney sooner rather than later.

5: What happens during the first consultation?

Your initial meeting will involve reviewing the facts of your case. You’re going to be telling a story. Keep it simple, and keep it chronological. Do your best to stick to a clear timeline of events (“I was hired on [date], my job was [X], and bad things happened on [dates]”), and don’t be surprised if you get interrupted with some questions. We will ask about:

Who: The people involved (supervisors, HR, witnesses).

What: The specific discriminatory actions (e.g., being passed over for a promotion, unequal pay, wrongful termination).

When: The dates those actions occurred.

Remember that simply talking to an attorney (just like reading this blog post) does not create an attorney-client relationship. At the end of your consultation, we will discuss what that relationship might look like moving forward as we assess the strength of your claim and potentially help you consider your legal options.

Don’t wait until the last minute—contact us today to schedule your confidential consultation and take the first critical step toward vindicating your rights.