Litigating Employment Discrimination Cases

Proven Strategies and Forms for Employment Discrimination

For nearly a decade, 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 14 HIGHLIGHTS

The 2019 edition of Litigating Employment Discrimination Cases is packed with up-to-date coverage of bedrock employment law principles; detailed analyses of current trends in the law; and use-it-today practical advice. The highlights include new and updated text re:

Federal Statutes Prohibiting Discrimination

• Scope and application of the religious organization exemption (Title VII)
• EEOC investigation: allowable scope; breadth of subpoena power
• Updated and expanded coverage of scope and substance of ADA, Sarbanes-Oxley, and FLSA

Theories of Discrimination 

• Mixed-motive standards in disability discrimination cases
• Disparate treatment discrimination: use of time-barred acts as relevant background evidence
• ADA cases: working from home as reasonable accommodation; rescission of previously granted accommodation

Case Evaluation

• 17 tried and true methods to generate business
• How to handle requests for an explanation of why a case is rejected
• Strict requirements which the referral and referring attorney must meet in order to pay and collect a referral fee

Depositions

• Plaintiff’s counsel: help your client move beyond clinical, dispassionate descriptions of the harassment
• Expanded and updated coverage of objections
• Taking breaks

Summary Judgment

• Cautionary note to defense counsel: Not every fact is material
• Has the time come to abandon McDonnell Douglas burden-shifting test?
• Establishing pretext: use the “adverse inference” doctrine; no “smoking gun” required
• Defeating hearsay arguments

Resolution Without Trial

• Mediation: updated and expanded coverage of damages/attorneys’ fees, with multiple examples re: emotional distress damages, economic damages, mitigation, punitive damages, attorneys’ fees
• Arbitration: Discussing Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524 (2019)
• Settlement agreements: Updated and expanded coverage of OWBPA review period and NY and NY state law counterpart; review of state laws prohibiting confidentiality provisions in sexual harassment and related cases

Bankruptcy Issues in Employment Litigation

• Electronic filing update, including sample form request for special notice or to be added or removed from courtesy notification of electronic filing (NEF)
• Legal standard for determining relief from stay motion — cause, with examples of relief granted/denied

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.