Strong evidence doesn’t just support your claims. It helps protect you, gives decision-makers less room to dismiss what happened, and can reduce the chances of the same harm happening again.

Whether you’re raising concerns with HR, talking to a lawyer, or trying to get the EEOC to take a closer look, evidence is what makes people pay attention.

Of course, it’s usually only possible to capture this evidence while you’re still employed and still have access to the evidence you’ll need, so this list is primarily written for employees who are still in their job and want to take proactive steps towards protecting themselves from the discrimination.

If you’ve never been through this before, it’s hard to know what evidence will matter later. What often surprises people is that even small, seemingly unrelated messages or details can become important if they later contradict a statement, explanation, or version of events from your employer.

That’s why we generally recommend capturing more than you think you’ll need, including one-off messages and small details. To help you get started, here are examples of evidence you may want to consider capturing:

Once you begin to escalate, you should also begin saving escalation communications including records of what concerns you raised, to who, what evidence you provided them and how they responded.

Many people know to capture proof of the harm they experienced, like being passed over for a promotion, demoted, or fired. Unfortunately, that’s not enough. What’s often missing is evidence that shows why the decision was unfair or biased.

One of the most effective ways to do this is by capturing evidence that compares your treatment to someone outside your protected class who was treated more favorably.

For example, if you believe you’re being discriminated against because of a disability, comparative evidence might show that your performance was the same as or better than a coworker without a disability, yet they received a promotion, better assignments, or more support while you did not.

This type of evidence helps highlight gaps in an employer’s reasoning for decisions and can support a broader pattern of unfair treatment, rather than a single unexplained decision.

If you live in a single-party consent state, recording conversations can be a powerful way to capture exactly what was said during problematic interactions. In these states, you’re allowed to record a conversation as long as you are part of it. You don’t need to inform the other person or ask for permission.

We’ve worked with many people whose cases were much stronger, because they had a recording of what was said. Having direct proof can remove doubt, reduce disputes over “who said what,” and make the behavior harder to minimize or reinterpret later.

That said, recording is not legal in every state. Before you hit record, check your state’s recording consent laws. In some states, recording without consent is illegal and could expose you to civil or criminal liability — and potentially undermine your case entirely.

Without a written record of what was said or when it happened, it often turns into your word against the person who caused harm. In those situations, the person with more power is usually believed.

That’s why it’s important to capture as much as you can in writing.

If the conversation already happens over email or chat, simply save that communication so you can reference it later. But even if the communication is initially verbal, you can still create a written record after the fact.

You don’t need to be confrontational. A simple follow-up message recapping what was said, any concerns or disagreements you raised, and any next steps you've agreed to is enough.

For example:

This simple email accomplishes several things:

If they reply to add additional feedback or expectations, that’s ok, as it still locks in the goal posts and makes it harder to move them later — a common tactic used to push people out with cause. And if they don’t respond? Their silence still documents your understanding at the time, which makes it much harder for the story to be rewritten later.

If you're suddenly terminated and your only evidence is on a work-owned device, the chances are high you'll never see it again. And without evidence, you'll likely struggle to find a lawyer or convince a civil rights agency to investigate further once your employer responds with a narrative that conveniently supports their version of events. It’s worth noting that while your employer will have access to all of the evidence, when they respond to the position statement, they’re only required to provide the evidence they want to provide. A civil rights agency may demand specific documents later in an investigation, but you may struggle to convince them to do this if the only thing you have against their evidence is your word.

Unfortunately this is often when employees learn that employers are particularly adept at proactively protecting themselves long before there's even a legal risk on the horizon. It is not a coincidence that leaders often want to discuss any of your concerns on a call, while always making sure to put any disciplinary feedback in writing.

Your employer knows what’s in writing might as well be the whole truth, since everything else is your word against theirs.

However, you should be mindful and intentional with what evidence you’re capturing. Most employers have policies against capturing privileged or confidential company information, which can include information like performance data if it includes information about other employees or contains privileged company insights.

One option is to escalate to HR first. If HR intervenes and the situation resolves, you may never need to take the risk of saving evidence externally at all.

However, if HR doesn’t step in or if you’re worried you’ll be pushed out without them acting, you’ll need to balance this risk against how impactful any given item of evidence is to proving the discrimination you believe is occurring. For example, many employers would discipline an employee for saving payroll records on a non-work device, but if these are the strongest piece of evidence proving financial harm compared to those not of your protected class — that evidence could be the difference between getting a lawyer and eventually justice and never seeing it at all.

Which is why in these situations we recommend you consult with an attorney first. Unfortunately though even that can be a challenge, as many lawyers want to see evidence before they’re willing to represent you. In these situations you can consider exploring an alternative legal option or at a minimum you should understand the potential consequences before you make a decision.

There's no perfect answer here — but understanding the tradeoff before you're forced to make the decision quickly is the best position you can put yourself in.

None of these steps can guarantee a specific outcome.

Discrimination cases are complex, and not even strong evidence is a guarantee that you’ll get the justice you deserve. What these practices can do is ensure that when the time comes to tell your story — to HR, a lawyer, an investigator, or a court — you have the means to tell your story on your own terms.

Remember, the person who harmed you is already protecting themselves. These steps are how you protect yourself.