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Defending Your First Employment Discrimination Case

When you are assigned your first employment discrimination case, there are definitely specific considerations that you should keep in mind. The following checklist addresses several nuances of this practice area and also provides a general overview of burdens and time limits imposed on plaintiffs bringing these types of claims. Of course, you must perform the necessary research to determine the precise standards in your case.
Legal Standards
Understand the legal standards for a discrimination claim
There are two basic theories a plaintiff can use to attempt to prove a case of discrimination: direct and circumstantial.
Direct evidence of discrimination
Generally, to establish direct evidence of discrimination, a plaintiff must establish that his or her membership in a protected class (i.e., gender, minority, disability status, age)was a motivating factor in the alleged discriminatory action that occurred (i.e., termination, demotion, pay change).
Circumstantial evidence of discrimination
To prove a circumstantial case of discrimination, a plaintiff must prove discriminatory intent by an inference. The U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411U.S. 792 (1973) established a burden shifting analysis for circumstantial evidence cases. This McDonnell Douglas burden shifting test requires (1) the plaintiff to establish a prima facie case of discrimination; (2) the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and (3) in order to prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. McDonnell Douglas, 411U. S. at 802-04.
Know the basic elements of the claim
To present a prima facie case of discrimination, a plaintiff must produce evidence of the following: (1) he or she is a member of a protected group (e.g., is a minority, a female, or over 40 years old); (2) he or she was subjected to adverse employment action (e.g., termination, demotion); and (3) that discrimination was the likely reason for the adverse action. At all times, this ultimate burden of proving that discrimination took place is on the employee.
Know whether there are administrative remedies or requirements
Several federal antidiscrimination statutes require a complaining party to first seek administrative relief for any alleged discrimination. In particular, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA") require a complaining party to file a complaint, known as a Charge of Discrimination ("Charge")with the Equal Employment Opportunity Commission ("EEOC"). Other anti-discrimination statutes, such as the Family Medical Leave Act ("FMLA"), the Fair Labor Standard Act ("FLSA") and the Uniformed Services Employment and Reemployment Rights Act ("USERRA") do not have any administrative requirements. When faced with a discrimination case, be sure to determine if there are administrative requirements that a plaintiff should have satisfied prior to filing suit.
EEOC Proceedings
Consider procedural defenses to the charge of discrimination
There are several defenses to a Charge that must be analyzed when handling an EEOC Charge.
Some courts have held that all Charges filed with the EEOC must be made under oath and signed by the complainant. This defense usually only applies when a complaining party uses a letter format instead of a form provided by the EEOC.
The deadline for filing an EEOC Charge is either 180 or 300 days after the last date of the alleged discriminatory conduct or event, depending on the state in which the allegation arises. It is often difficult to determine when the last alleged discriminatory act or event occurred; however, with discreet actions like hiring, promotion and termination decisions, it is usually easier to document the exact date the alleged decision was made. Plaintiffs often use the continuing violation theory to try to circumvent these time requirements.
If you represent a small employer it might be worthwhile to determine if it qualifies as a covered employer under the anti-discrimination statutes. Under Title VII and the ADA an employer is covered if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as, or in the calendar year prior to when, the alleged discrimination occurred. To be a covered employer under the ADEA, an employer must have 20 or more employees (except state and local government employers who are covered regardless of their size).
Consider EEOC sponsored mediation
Before the Charge is processed by its enforcement division, the EEOC's mediation unit may be assigned to determine if both parties are interested in a possible early settlement. Consider using this mechanism to educate your client on what lies ahead if the case is litigated. Many Charges are disposed of at this stage in the process.
Determine an approach for the EEOC statement of position
This is the vehicle that allows an employer to explain its alleged discriminatory action and is the first formal response to the Charge. Different philosophies exist as to the approach in providing information to the EEOC. Regardless of what you provide to the EEOC, be mindful that it could come back to haunt you or your client if the case is litigated in court. Any discrepancies, inaccuracies or changes in position could be viewed by a court or jury as pretext.
Look for the EEOC's cause and no cause findings
After concluding its investigation, the EEOC makes a determination as to whether there is reasonable cause to believe that the alleged discrimination occurred. The EEOC will either determine that it is more likely than not that the discrimination occurred or will determine that there is insufficient evidence to support a finding of discrimination. This determination will be provided as part of a "Notice of Right to Sue," which formally closes the EEOC's handling of the Charge. A complaining party is able to sue no matter what the EEOC determines.
EEOC's notice of right to sue
Generally, an individual must file his or her federal lawsuit within 90 days of receiving a notice of a "Right to Sue" from the EEOC. It is often difficult to determine when a potential plaintiff actually receives a copy of the "Right to Sue."
Litigation of Discrimination Claims
Responding to the complaint
Generally, most employment discrimination cases are filed in federal court. Answer within 20 days if the complaint is filed in federal court. See Fed. R. Civ. P. 12. If the complaint is filed in state court, consider moving it to federal court. See 28U.S.C. § 1446; Fed. R. Civ. P. 81.
Consider and assert affirmative defenses
Raise all potentially applicable affirmative defenses in your answer. See Federal Rules of Civil Procedure 8(c) and 12. Some possible defenses include the plaintiff's failure to comply with the administrative requirements of the EEOC process, jurisdictional procedures (employer not "covered" under the legal theory pled), the claims in the complaint exceed the scope of the EEOC Charge, the plaintiff failed to set forth a prima facie case of discrimination, after-acquired evidence, and same decision-maker defense. There are many others that may apply to your particular case.
Use of investigation and discovery is critical
Because employment cases are usually so fact intensive, it is important to conduct a comprehensive and thorough investigation into the facts in dispute as well as plaintiff's background. Your investigation should include a review of information from your client and other sources.
Obtain important information from your client
Begin your investigation with documents and information from your client. Interview the decision-maker and other witnesses. It is important to test your client's version of the facts early in the process to make sure that the "paper story" does not come apart during depositions. In addition, you should consider and obtain copies of the following:
¨        All information to/from EEOC regarding the charge investigation
¨        Plaintiff's complete personnel file
¨        Employee handbook(s) and all policies and procedures of the company
¨        Any other documents that substantiate the employer's legitimate nondiscriminatory reason for the alleged discriminatory decision/action
Move quickly on a FOIA request
As soon as the complaint is received, send a Freedom of Information Act ("FOIA") request to the EEOC seeking all information pertaining to the Charge of Discrimination. See
Conduct third party discovery
Subpoena background information regarding plaintiff from the following: (1) plaintiff's former and current employers (find this information on the employment application that should be in the personnel file); (2) if plaintiff filed for unemployment benefits, subpoena information from the state or local government office that handled the request (information not only can help with damage mitigation but in some jurisdictions you can use it to advance collateral estoppel arguments); (3) educational or professional institutions that plaintiff attended; and, (4) plaintiff's health care providers (to access mental or emotional damages).
A background check can be useful
Conduct a background check on the plaintiff for criminal, civil (state and federal cases) and bankruptcy cases. You never know what helpful information will turn up.
Be meticulous about document discovery
Tailor written discovery to facts/circumstances of particular case. These factually intensive cases produce a lot of paper. Keep documents organized and numbered because it is crucial to keep an accurate record.
Written discovery can streamline parts of your case
Consider use of Requests for Admissions for Facts that may not be in dispute. See Fed. R. Civ. P. 36.
Before taking plaintiff's deposition, be sure to have received and reviewed all documents generated by your thorough investigation
Thorough preparation on your part will help pin down and test the plaintiff 's version of the facts. 
Mr. Kelly is an associate with Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in its Birmingham, Alabama office. He is admitted to practice in Alabama and Georgia and is an active member of the American Bar Association who has served as Vice-Chair of the Young Lawyers Division Labor and Employment Committee. Mr. Kelly is also a member of the Birmingham Bar Association, the Alabama and Georgia Bar Associations and the Defense Research Institute.                 
The 101 Practice Series: Breaking Down the Basics helps lawyers in their first three years of practice learn the basics of both substantive and practical aspects of law practice. For more information about the series visit the American Bar Association Young Lawyers Division website.
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