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:
- 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 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.
- 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.”
“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….”
“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….”
“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 11 HIGHLIGHTS
The new Edition overflows with in-depth legal analysis; practical guidance regarding trends in the law; and from-the-trenches tips and strategic advice. The coverage spans a broad range of topics, including:
- Framing a marital status or parenthood status discrimination claim as a “sex-plus” gender discrimination claim
- Title VII liability for use of criminal history as a factor in the hiring decision, under two distinct analytic frameworks: “disparate treatment” and “disparate impact”
- Arrest records and “ban the box” legislation, which mandates that employers consider a job candidate’s qualifications first, without the stigma of a criminal record
- The status of Indian Tribes and private membership clubs as covered employers
- Post-Mach Mining cases and special considerations when the EEOC sues on behalf of the complainant
- How and why to file a lien against a former client if you are discharged or your representation otherwise terminates before you have recovered your attorneys’ fees and costs
- Summary judgment and the “indirect method” of proving discrimination, with examples of courts rejecting defense efforts at “double-dipping”
- The effect of an unaccepted offer that would have made the plaintiff whole, including a lengthy discussion of post-Genesis Healthcare Corp. v. Symczyk cases
This update also includes new and updated text and case law on:
- Sexual orientation discrimination
- “Race-plus” discrimination
- “Intolerable” conditions giving rise to a constructive discharge claim
- Harassment is by an anonymous party
- Discrimination based on religion: grooming policies and illegal sex stereotyping
- The gender BFOQ defense
- Reasonable accommodation under the ADA
- Defenses in cases alleging violation of §1981 of Civil Rights Act of 1866
- Evidence preservation, including with a sample request for documents to send to your client
- The procedure for communicating an unconditional offer of reinstatement
- The practical impact of the 2015 amendments to Fed. R. Civ. P. 26(b) [§6:78.1]