Sexual harassment week continues. Last post I addressed What
is Sexual Harassment? The gist was that successful sexual harassment claims
are harder to establish than some people think. Today's post comes at it from
the other angle: getting rid of the bad claims ("bad" as in baseless) is also
harder than some people think.
While reading Herman Cain stories, I often see comments paraphrased as, "if
Cain didn't sexually harass anyone, then why did they settle?" I find that
people are often shocked at how hard it is to get rid of bad claims. Employers
can't just send a letter to the judge: "Dear Judge, this is one of them
there 'baseless' lawsuits. Please dismiss posthaste." And we're done!
Sorry, it doesn't happen like that.
I'll state again that I don't know what happened with Cain. But let's assume
for the sake of argument that the claim against him was completely baseless -
no evidence, silly claim, would have been a garbage lawsuit. How does an
employer get rid of such a claim without settling?
- Before filing a lawsuit, the employee must go to the EEOC or equivalent state
agency (for my PA readers, the PHRC).
- The agency conducts an investigation. The employer will produce information,
affidavits, conduct interviews, etc.
- The employer may be called on to participate in negotiations or mediation.
- If the agency finds no evidence of discrimination or harassment, the agency
will drop the case . . . but issue a "Right to Sue" letter to the employee.
At this point, months if not years have gone by. And only now does the lawsuit
- If the employee files a Complaint that is obviously silly - or, even assuming
everything in the complaint is true, still doesn't constitute sexual harassment
- the employer can move to dismiss the case. Even this involves drafting a
motion to dismiss and a brief in support of it (with proper legal research and
Maybe, the case ends here. What about cases in which the employee's complaint
makes vague allegations, or just makes up a bunch of stuff with no evidence?
The employer must then:
- Draft an Answer
- Written discovery: answering a bunch of questions from the plaintiff (interrogatories);
identifying, reviewing, and providing documents to the plaintiff; and then
serving the plaintiff with the employer's own interrogatories and requests for
production of documents.
- Depositions: Days worth of depositions in which attorneys question the
plaintiff, witnesses, other employees (don't forget the costs of hiring a court
reporter to be there every day!).
- Summary judgment: If there's still no evidence, the employer can file a
motion for summary judgment with statement of material facts and brief in
support (including legal research).
Phew, assuming there is no evidence and the motion for summary judgment is
successful, it's finally over (unless the employee appeals)! But
only after years and easily tens of thousands of dollars in legal fees.
Still wondering why an employer might settle a bad claim? Next post: Settlement
For additional Employment Law updates, follow
this link to Phillip Miles' blog, Lawffice
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