San Francisco Employment Law Firm Blog
Winning any civil case, including an employment discrimination case, requires proving (1) liability and (2) damages (past and future wage loss, emotional distress, in some cases punitive damages). Because liability in many, if not most, wrongful termination and discrimination cases is disputed by employers, a practical assessment of how likely you are to prove liability and damages is essential before deciding whether to pursue that case in court.
If you have little to no evidence that the employer discriminated against you and/or terminated your employment for unlawful reasons, then that case is likely not worth pursuing no matter how significant the damages are. After all, if you can’t establish liability, you would never even get to present your damages. On the other hand, if the evidence of liability is compelling, then even the case with relatively modest damages is likely to be worth pursuing because the employer is more likely to settle that case in the face of that unfavorable evidence. And, even if the settlement is not achieved, you will have a better shot at winning your case at trial.
Establishing liability is inherently challenging, because in an at-will employment relationship you as an employee have a burden of proving that the unlawful discrimination or retaliation was the reason or a substantial reason for your termination, demotion, or failure to select and hire you for a particular job. “What else could it be” alone is never sufficient proof in court. Because “smoking gun” evidence of discrimination is rarely available, all the relevant circumstances surrounding the employer’s adverse action have to be carefully evaluated before deciding whether to pursue that case. This is often a judgment call that’s not based on black-and-white rules, and is more of an art than science.