Litigating Employment Discrimination Cases

Description

Proven Strategies and Forms for Employment Discrimination

For nearly two decades, Litigating Employment Discrimination Cases has been a trusted resource for employment counsel, providing comprehensive coverage of the law, along with practice-proven tools for success. The coverage spans a wide range of topics: legal theories and proof of discrimination; case evaluation; pleading; discovery; summary judgment; alternative dispute resolution; and bankruptcy-related issues.

Here you’ll find tactics, arguments, and documents to help you with the practical aspects of discrimination litigation: case evaluation, pleading, discovery, summary judgment, experts, mediation, and more.

You also receive pattern arguments supported by over 1,100 recent cases with parentheticals and pinpoint citations, pleadings, motions, discovery documents, deposition outlines, pitfalls to avoid … and most important … practice-proven tactics and techniques—as well as over a hundred forms in print and via Digital Access.  Some of the areas covered include:

Discovery

• Defending employer’s efforts to interview the plaintiff.
• Controlling ancillary proceedings.
• Ensuring evidence is preserved.
• Tips and techniques for deposing discrimination witnesses.
• Deposition questions annotated with practice tips and case law.
• Questions for decision-maker, human resources professional, and investigator of plaintiff’s complaints.
• Requests for production of documents by type of discrimination.
• Handling common discovery tricks of the defense.
• Model interrogatories.
• Pattern requests for admissions.
• Defending the plaintiff’s deposition.
• Opportunity questions and how they should be answered. 
• Handling common defense deposition tricks. 
• Checklist of common hidden weaknesses in your case.
• Extensive list of probable defense questions to use in plaintiff’s mock deposition.
• Annotated with practice tips and case citations.
• Aggressive plaintiff deposition tactics, and when to employ them.
• Blocking and handling defense mental examinations.
• Defending document requests.

Summary judgment

• Summary judgment oriented deposition tips for employers.
• Drafting tips for employers by type of discrimination, annotated with pattern argument language, case citations, and pitfalls to avoid.
• Pattern reply brief arguments for employers, specific to plaintiff argument, including stray remark, conjecture, inconsistent declarations, smoke and mirrors (surprising difficult to defend). 
• Handling McDonnell Douglas burden-shifting test. 
• Common ways that defense counsel misstate the burden-shifting test. Tactics and arguments to use in response, with citations.
• Multiple responses, with case authorities, to use when defense argues same group inference, same hirer-firer, RIF or layoff, or stray remarks.

Pretrial

• Common defense motions in limine, with extensive case authorities on stray remarks and me-too evidence.
• Strategies and citations for opposing these defense motions.
• Common plaintiff motions in limine – not me-too, unrelated bad acts, performance problems at other employers, good deeds, and collateral source payments.
• Handling motions to bifurcate, and motions to sever

Nearly every chapter in Litigating Employment Discrimination Cases contains dozens of highlighted pointers, cautions, alerts, and arguments. Most are supported with case citations, sample language, or pattern forms. For example:

Related state torts

“Fraud claim opens door to additional damages. Under these circumstances, the employee can sue for various contract-related claims, but the fraud claim may be more appealing because….”

“Always consider pleading concealment. Include concealment allegations along with a fraud claim, as it is often easier to prove the employer suppressed a material fact than to prove the employer misrepresented a material fact.”

Pleading

“Consider including time-barred conduct in complaint. Even if you believe that certain conduct will be time-barred, consider alleging that conduct because it may be relevant to proving that the defendant’s articulated reasons for its actions are pretextual….”

“Tolling of administrative charge filing deadlines. Exercise great caution in relying on tolling agreements because defense counsel will search for any possible loophole to argue that the tolling agreement does not apply to certain defendants or claims. For example, in discrimination cases, defense counsel may….”

Discovery

“Seek evidence to show decision-making process contaminated. In the absence of evidence that the decision-maker harbored discriminatory animus, seek evidence that the decision was based on information “contaminated” by one who did harbor discriminatory animus. For example….”

Summary judgment

“Sample argument. If discovery reveals that discriminatory comments were made in the workplace, defense counsel will almost certainly argue to the court that the comments are merely inadmissible “stray remarks.” You must address this argument head-on in the opposition. For example…”

The effective pleading language, cases sorted by pros and cons, pitfalls and solutions, pattern discovery requests, and common defense tricks detailed in Litigating Employment Discrimination Cases will help you stay focused on the important issues that lead to successful litigation.

REVISION 18 HIGHLIGHTS

The highlights of this 18th Edition of Litigating Employment Discrimination Cases include new and updated text, cases and analysis re:

FEDERAL STATUTES PROHIBITING DISCRIMINATION

• ADA of 1990 and ADA Amendments Act of 2008
• Publication of EEOC technical assistance documents
• Right to a jury trial on ADA retaliation claims
• Family and Medical Leave Act: Use of leave to work a reduced number of hours indefinitely
• Pregnant Workers Fairness Act
• Speak Out Act
• Sarbanes Act: Whether a whistleblower must prove “retaliatory intent”
• WARN Act: Bench or jury trial?
• Fair Labor Standards Act
  • Broad scope of “suffer or permit to work” governing payment of wages/overtime
  • PUMP Act requirements
• False Claims Act: Scienter requirement; retaliation claims and remedies period

THEORIES AND PROOF OF DISCRIMINATION

• McDonnell Douglas framework in cases with circumstantial evidence of discriminatory motivation
• Establishing a prima facia case in non-hire cases
• Categories of employment decisions that constitute “adverse employment actions”
• When a proposed accommodation poses an undue hardship: personal appearance/safety concerns; assistance in traveling to/from work

SUMMARY JUDGMENT

• When a discrimination case turns on issues re the employer’s intent
• When the issue is whether plaintiff suffered an adverse employment action

RESOLUTION WITHOUT TRIAL

• Failure to authenticate employee’s purported signature on arbitration agreement
• FAA exempts transportation workers, including independent contractors, from mandatory arbitration
• What it means to be a worker engaged in “foreign or Interstate commerce”
• Scope of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

AND MUCH MORE!

ABBREVIATED TABLE OF CONTENTS

CHAPTER 1 FEDERAL STATUTES PROHIBITING DISCRIMINATION
CHAPTER 2 THEORIES AND PROOF OF DISCRIMINATION
CHAPTER 3 RELATED STATE TORTS
CHAPTER 4 CASE EVALUATION
CHAPTER 5 PLEADING
CHAPTER 6 DISCOVERY
CHAPTER 7 EXPERT WITNESSES
CHAPTER 8 SUMMARY JUDGMENT PRACTICE AND PROCEDURE
CHAPTER 9 PRE-TRIAL PROCEDURES AND DOCUMENTS
CHAPTER 10 RESOLUTION WITHOUT TRIAL
CHAPTER 11 BANKRUPTCY ISSUES IN EMPLOYMENT LITIGATION
CHAPTER 12 INSURANCE ISSUES IN EMPLOYMENT LITIGATION

ABOUT THE AUTHOR

Andrew H. Friedman is a name partner in the law firm of Helmer • Friedman, LLP (www.helmerfriedman.com) in Los Angeles, California. He has practiced primarily in the area of employment law since completing his judicial clerkship in 1990.

Mr. Friedman has litigated virtually every type of employment case on behalf of management, individual defendants, and plaintiffs in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. In addition, Mr. Friedman has comprehensive experience negotiating employment contracts, severance and settlement agreements on behalf of both employers and employees. He has also counseled employers in all aspects of employment law including: wrongful termination avoidance; discrimination and harassment training, avoidance and how to conduct a proper investigation; trade secret protection; workplace violence; and employee handbooks and personnel policies addressing all issues that affect the workplace from at-will employment and drug testing to voice-mail, e-mail, computers and the internet. Mr. Friedman has also served as a neutral fact-finder.

Mr. Friedman is a frequent speaker for various human resource and legal organizations, including the National Business Institute (“NBI”), Southern California Employment Round Table (“SCERT”), the Professionals In Human Resources Association (“PIHRA”), the Beverly Hills Bar Association, the State Bar of California, and the Los Angeles County Bar Association. Mr. Friedman has also spoken about various labor and employment law issues on “Your Legal Rights”, a San Francisco-based public radio program, produced and hosted by Chuck Finney, which covers a wide range of legal issues for California consumers.