Your Cellphone Records and Proving Disability Discriimination

One of the common challenges in proving violation of disability rights in a wrongful termination case is showing that the employer knew that the employee had a qualifying condition or suffered an injury shortly before being terminated, and thus his or her termination was discriminatory or retaliatory.

In the absence of e-mails or faxes where the employee puts the employer on notice of his condition and the need for medical leave or accommodations to the medical condition, phone records may be a persuasive evidence in proving that the employee was likely retaliated after suffering an injury and successfully negotiating a settlement.

Suppose you suffer an on the job injury while operating an industrial equipment. You call your boss and/or human resources manager to let them know that you were injured, that you need to leave to seek medical attention, and you might need time off. They agree with you and informally allow you to leave work to take care of your injury. A few days later you are terminated for insubordination, poor performance, or some other abstract reason. When you argue in a legal action in court or in front of EEOC/DFEH that you were terminated because of your injury, your supervisor says that he never heard from you and did not know you suffered an injury before deciding to terminate you or that he didn’t even speak with you after you were injured. This is where your phone records reflecting at least that you made those calls after your injury can be extremely helpful. If you can, get them right away. If it has been a while since the subject day of when these important phone calls took place, subpoena those records from your phone provider or encourage your attorney to do the same.

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