Employment discrimination and termination
| Author | Evan Schaeffer |
| Pages | 371-404 |
EMPLOYMENT
6-1
CHAPTER 6
EMPLOYMENT DISCRIMINATION
AND TERMINATION
I. ELEMENTS OF THE PLAINTIFF’S CAUSE OF ACTION
A. Wrongful Termination
1. Sources of Claims for Wrongful Termination
§6:01 Employee-at-Will
§6:02 Contract-Based Claims for Wrongful Termination
§6:03 Practice Tip: Duty of Good Faith and Fair Dealing
§6:04 Tort-Based Claims for Wrongful Termination
§6:05 Statutory-Based Claims for Wrongful Termination
2. Typical Defenses to Wrongful Termination Claims
§6:10 Defenses to Wrongful Termination Claims
§6:11 Practice Tip: The Plaintiff’s Employment File
B. Discrimination
1. Types of Prohibited Discrimination
§6:20 Sources of Laws Prohibiting Discrimination
§6:21 Prima Facie Discrimination Claim
§6:22 Age
§6:23 Race
§6:24 Practice Tip: The EEOC
§6:25 Gender
§6:26 Sexual Harassment
§6:27 Disability
§6:28 Other Prohibited Discrimination
§6:29 Practice Tip: Let the Witness Ramble—or Not?
2. Typical Defenses to Discrimination Claims
§6:40 Defenses Common to Discrimination Claims
§6:41 Other Defenses: Age
§6:42 Other Defenses: Race
§6:43 Other Defenses: Gender
§6:44 Other Defenses: Sexual Harassment
§6:45 Other Defenses: Disability
§6:46 Practice Tip: Screening Employment Cases
II. THE DISCOVERY PLAN
A. Sequence and Timing
§6:60 The Initial Round
§6:61 Practice Tip: Defining “Document” to Include Information in Electronic Format
EMPLOYMENT
Deposition Checklists and Strategies 6-2
§6:62 Practice Tip: Consider the Use of a Corporate-Representative
Deposition on Electronic Discovery Issues
§6:63 Requests for Admissions
§6:64 Depositions
§6:65 Opinions of Defendant’s Experts
B. Documents and Exhibits
§6:70 General Categories
§6:71 Liability Documents
§6:72 Damage Documents
§6:73 Practice Tip: Discovery of E-Mails
§6:74 Practice Tip: Other Steps to Take Where Electronic Information Is at Issue
§6:75 Practice Tip: Advantages of Receiving Information in Electronic Format
§6:76 Practice Tip: Admissibility of Employee E-Mails
C. Typical Deponents
1. The Depositions Plaintiff Will Take
§6:90 General Points
§6:91 Occurrence and Damage Witnesses
§6:92 Practice Tip: Explore All Categories of Damages
§6:93 Defendant’s Expert Witnesses
2. The Depositions the Defendant Will Take
§6:100 Occurrence and Damage Witnesses
§6:101 Plaintiff’s Expert Witnesses
III. SAMPLE DEPOSITION: REGIONAL MANAGER IN A SEXUAL HARASSMENT CASE
A. Planning
§6:110 Overview
§6:111 Timing
B. Goals, Strategy and Preparation
§6:120 Deposition Goals
§6:121 Deposition Strategy
§6:122 Caution: Deposing the Alleged Harasser
§6:123 Deposition Preparation
§6:124 Deposition Exhibits
§6:125 Practice Tip: Under the Federal Rules, Objections Should Be
“Nonargumentative and Nonsuggestive”
§6:126 Practice Tip: Good Lawyers Can Be Humble Too
C. The Deposition Outline
1. Background and Thumbnail Outline
§6:130 Background Facts
§6:130.1 Practice Tip: The Dangers of an Ambiguous Answer
§6:131 Thumbnail Outline/Deposition Checklist
2. Preliminary Questions
§6:140 Standard Introductory Questions
§6:141 Education and Employment History
3. Other Background Questions
§6:150 The Witness’s Background: Background Concerning Sexual Harassment Investigations
§6:150.1 Practice Tip: Tips for Appearing More Experienced
§6:151 The Witness’s Preparation for the Deposition
§6:151.1 Practice Tip: What to Do With the Original Deposition
§6:152 Past Dealings With Alleged Harasser
4. The Witness’s Investigation Into Allegations of Sexual Harassment
§6:160 How the Witness Learned of the Complaints
§6:161.1 Practice Tip: Controlling the Witness Who Rambles
§6:161 Witness’s Notes Concerning the Investigation, and the First Meeting With Plaintiff
EMPLOYMENT
6-3 Employment Discrimination and Termination
§6:162 Discussions With Plaintiff About the EEOC
§6:163 Assistance From Others in Conducting the Investigation
§6:163.1 Practice Tip: Don’t Give the Witness a Chance to “Dis-Remember” an Event
§6:164 The Timing of the Investigation
§6:165 Other Incidents Before the Completion of the Investigation
§6:166 The Witness’s Conversations With the Alleged Harasser
§6:166.1 Practice Tip: When Taking Depositions, Beware of Pronoun Soup
§6:167 The Witness’s Conversations With the Other Witnesses
§6:168 Conclusions Reached
§6:169 Practice Tip: Plaintif f’s Credibility
§6:170 Practice Tip: Getting Assent to Principles With Which the Witness Cannot Disagree
5. Other Statements or Conversations
§6:180 Conversations About the Incident or the Lawsuit
6. Closing Questions
§6:190 Closing Questions
IV. SAMPLE DEPOSITION: RESTAURANT OWNER IN RACEDISCRIMINATION CASE
A. Planning
§6:200 Overview
§6:201 Timing
B. Goals, Strategy and Preparation
§6:210 Deposition Goals
§6:211 Deposition Strategy
§6:211.1 Practice Tip: When the Witness Wants a Conference With His or Her Attorney
§6:212 Deposition Preparation
§6:213 Deposition Exhibits
C. The Deposition Outline
1. Background and Thumbnail Outline
§6:220 Background Facts
§6:221 Thumbnail Outline/Deposition Checklist
2. Preliminary and Background Questions
§6:230 Standard Introductory Questions
§6:231 Educational Background
§6:231.1 Practice Tip: Sometimes You Should Save the Best for Last
§6:232 Work History, Including Details About the Corporate Defendant
§6:232.1 Practice Tip: Asserting Control by Remaining Confident
§6:233 Family Background
§6:234 Past Convictions
§6:235 The Witness’s Preparation for the Deposition
§6:236 Practice Tip: Remember to Summarize
3. Corporate Background
§6:240 Past Complaints and Lawsuits
§6:240.1 Practice Tip: Pursuing the Recalcitrant Witness
§6:241 The Restaurant’s Hiring Procedures
§6:242 The Identity of Other Witnesses
§6:243 Practice Tip: Get Your Deposition Transcripts via E-Mail
4. The Alleged Incident of Discrimination
§6:250 Over view of Witness’s Dealing With Plaintiff
§6:250.1 Practice Tip: Types of Leading Questions
§6:251 Plaintiff’s Job Interview
§6:252 The Decision Not to Hire the Plaintiff
§6:253 The EEOC Action and Other Employment Decisions Concerning the Plaintiff
§6:254 Practice Tip: Depositions Out of Town
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