“Attorneys keep rejecting my case and telling me to come back when I’ve been fired.”

This is the single most common thing I hear from employees who reach out after the discrimination has started, but before they’ve experienced career impacting harm.

I’m using fired, because that seems to be the way most lawyers phrase it, but for clarity, the harm doesn’t have to be termination. It could be a demotion, a promotion denial, being paid less than your peers.

But whatever it is, the lawyers are communicating that you need to experience harm before they’re going to be able to help you.

I’ve received this email, so I know it’s disheartening. It feels dismissive. Especially because you’re trying to prevent the harm and they’re telling you that they won’t help you until the harm happens.

The frustration you’re feeling is valid, but I’ve also found it helps to understand the why behind lawyers saying this. And no, it’s not just that they’re all greedy and don’t care about helping employees. Though, in some cases, that can be true too.

But most of the time? It comes down to something employees are rarely taught: what it takes to hold companies accountable, how cases are evaluated by lawyers and agencies like the EEOC and what lawyers understand about the process that you don’t.

Most importantly, understand that a lawyer telling you to come back isn’t the same as a lawyer saying they don’t believe you’re experiencing discrimination. If anything it signals they see evidence you are being discriminated against and that’s why they’re telling you to come back once you’ve experienced harm.

I'm going to assume you’re experiencing discrimination and you’ve already tried escalating internally without success. However, if you haven’t, this can also be a reason for having your case turned down as lawyers typically only take on clients who have exhausted their internal escalation options in an attempt to resolve the conflict.

If you have escalated and either nothing has been done or too little has been done, it’s probably a pretty safe bet to say that your company is not willing to make the changes you feel are necessary even after you’ve given them all the information and evidence you have that you’re being discriminated against.

So let's talk about what's required to force a person or entity to change when they’re unwilling to do so of their own accord. Typically you need either an incentive that motivates them to act or the threat of consequences the company would rather avoid.

Since most employees aren't in a position to offer incentives grand enough to persuade a company, we'll focus on the threat of consequences.

Maybe you already know this, but your company likely has lawyers on staff, and sometimes even additional external lawyers, constantly working to monitor for threats and limit legal and financial risk.

Here's what that looks like in practice: a company is deciding whether to terminate someone or manage them out, but before the company takes any action, it’s lawyers review the severance offer and everything that led up to the termination, specifically to make sure the company's liability exposure is low. This scrutiny increases if the employee has spoken up already, because now there's a paper trail connecting the complaint to what happens next.

But did you notice what’s missing? These lawyers aren't evaluating if the company was in the wrong or if they could have treated the employee better.

Their concern is how likely it is that the employee could hold the company legally accountable for firing them. Translation: how strong would the employee’s case be if the employee claimed the company fired them for discriminatory reasons.

If the company’s lawyers conclude that the risk is low, they will typically move forward with the termination. However, in situations where the lawyers believe the legal risk is high, it is possible they’ll recommend leaving the employee in place rather than causing. harm that could trigger a lawsuit.

This is because the company’s lawyers know that demonstrating harm is one of the four requirements for satisfying the Burden of Proof that would allow the employee to hold the company legally accountable.

On the other side, the lawyers you're contacting to represent you understand the legal requirements too. They know that without the ability to at least threaten litigation, and pursue it if needed, the company has no reason to engage, whether or not you're represented by a lawyer.

After all, why would the company engage? If they wanted to change or do better, they would have. And if they’re not interested in doing better, there’s no incentive motivating them to change their mind.

This is where people usually get stuck. If you're not planning to sue, why does it matter whether you've experienced harm yet?

Because even if you never intend to sue, the ability to credibly threaten action is part of what keeps a company in check. Without it, there's nothing pushing the company to behave any differently than they have been. Having a lawyer involved doesn’t change that.

And unfortunately there isn't much institutional support for preventing discrimination before it happens. In general, it may help to think of lawyers as a resource to help you recover from harm rather than protect you from it.

There is one piece of good news though. Even if lawyers won’t take on your case now, all hope is not lost and it doesn’t mean your discrimination concerns are invalid. In fact if a lawyer is telling you to return after you’re fired, it’s probably because they recognize the signs of discrimination in your claims, even if there’s nothing they can help you with today.

If you’re still employed, don’t give up and accept defeat just because a lawyer turned you away or the EEOC closed your case. Instead continue diligently documenting and collecting evidence.

Being proactive now ensures you’ll have proof of what happened to you when and if harm does occur and you’ll need that proof to hold the company accountable too. If you’re not sure what to collect, read our post 5 Evidence Best Practices For Employees Who Are Still Employed.

And if you still have questions?