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Conducting An Investigation Into Claims of Unlawful Employment Discrimination

Posted March 18, 2016 in Lawrence J. Sherman Articles

Nature of Undertaking
The idea is to get the witness talking and gain his or her confidence. While promises of confidentiality can be provided, they must be qualified since none of these witnesses will be covered by the attorney-client privilege, but at most qualified litigation privilege (work product), if anything. The source of information can be safeguarded generally and provided to the adverse party during discovery in the form that states what plaintiff and her counsel believe the witness knows. This protection will not exist if it is necessary to take a witness statement or affidavit in order to preserve testimony for a variety of reasons.

The idea is to get the witness talking and gain his or her confidence. While promises of confidentiality can be provided, they must be qualified since none of these witnesses will be covered by the attorney-client privilege, but at most qualified litigation privilege (work product), if anything. The source of information can be safeguarded generally and provided to the adverse party during discovery in the form that states what plaintiff and her counsel believe the witness knows. This protection will not exist if it is necessary to take a witness statement or affidavit in order to preserve testimony for a variety of reasons.

The Purpose and Focus of the Investigation
An investigation should serve multiple purposes. Key ingredients include corroborating the client's basic story, identifying areas for further investigation, and identifying potential problems or holes in the client's basic story. In conjunction with the investigation, there should be an ongoing effort to develop a chronology and/or timeline, which should be updated periodically, using the client as a resource or asking declined to do the initial draft(s) and providing commentary and insight. This timeline should utilize and/or reference available documentation as well as the recollection of key witnesses.

The entire undertaking involves an interactive process by which important facts are identified, tied down and verified. Simultaneously, key documents are identified, collected, and analyzed. An investigation is an ongoing process by which key witnesses are identified and asked about their knowledge, potential witnesses, and potential documentation and re-interviewed, deposed, or worked up for trial as the case evolves.

Key Indicators of Unlawful Discrimination or Retaliation
The discussion set forth below focuses on a logical gathering of facts to understand the situation and to develop a game plan for conducting further investigation and related activities. There is no attempt to place a value on or to highlight any particular indicator. Judges and juries respond to evidence quite differently. At various points in litigation, evidence will have to be summarized and argued in a manner that appeals to a judge, the jury, or to both triers-of-fact essentially simultaneously.

These considerations should not weigh down an investigation or effort to develop a comprehensive discovery plan. It is also important to be aware that no clear-cut categories exist. They are often mixed together and can arise concurrently, sequentially, or intermittently.

  • A pattern of the adverse and hostile treatment directed toward the complaining party and/or close associates. One important indicator is when and how the adverse treatment started and whether it is causally connected to any exercise or perceived exercise of right. Often times, the employee's standing with the employer, large or small, goes markedly down once he or she is perceived as a threat or as no longer being a team player. A pattern of harassment, demeaning treatment, subtle or overt exclusion from contact, her work assignments, etc., can be very significant as well.

  • Comparative evidence. The focus here is on how similarly situated employees have been treated by the employer with regard to the saying or essentially saying disciplinary problems, promotion, working condition, pay matter, etc.

    • Disparate treatment is a type of comparative evidence, which focuses on individual or one-on-one comparisons and is most useful when the same type of adverse treatment or denial of right is involved. The courts have been leaning toward requiring closely similar or virtually identical comparators - in effect, lockstep comparisons. Testimonial and documentary evidence is important here.

    • The time frame and setting are important variables. It is best if the key players are essentially the same and that the context is the same. Where there is basic comparability, differences in treatment of individuals can provide important background evidence and may even provide important circumstantial evidence in support of the ultimate inference.


  • Pretext. Pretext is a broad concept with several related meanings. At its heart, it is the idea that the employer's asserted reason taking the challenged employment practice or policy is not its true reason, but instead is a cloak or cover-up for an unlawful motivation. Establishing pretext often, but not always, involves catching an employer or a key supervisor in the lie. It may also involve showing that the claimed error or act of misconduct has been trumped up or exaggerated beyond all proportion. It also may require convincing the trier-of-fact that this reason was not the motivating or controlling reason by reference to circumstantial evidence, personnel rules, probabilities, etc.

  • Failure to follow rules, established norms and work practices. This is another type of before and after analysis. Individual conduct is evaluated in light of external measures. Sometimes, the rules are written, but many other times they have to be pieced together from work practices or gained through admissions secured during discovery or trial.

  • If the existence of a rule can be established by reference to company or organization policy, rule, or legal standard law, the departure is very similar to disparate treatment. One key difference is that the departure is measured against an essentially fixed or legal standard. That makes the comparison more compelling, but also invites the trier-of-fact to interpret and apply the legal and other standards to reach a desired conclusion.

  • It is also appropriate to look at how the employer treated the employee or workplace conduct before and after a pivotal event. It is also possible to measure conduct by neutral standards, such as pay for the administration of personnel policies, or legal standards.

  • Shifting or inconsistent explanations for stories advanced to justify the adverse treatment. Employers, supervisors, human resources personnel and others (e. g., attorneys) often advance different reasons for the employment action that gives rise to a claim of discrimination or retaliation. It is important to identify each of the shifting reasons and to develop evidence to demonstrate that each and/or all these stated reasons cannot withstand analysis and/or are pretextual in nature.

  • Injuries and Damages. Establishing liability is only half the battle. Effective vindication of the right to be free from invidious acts of employment discrimination and/or retaliation requires that the aggrieved employee be able to secure a meaningful remedy. These components include equitable relief to restore the situation to what previously existed, recovery of lost pay and benefits, and compensation for personal and professional losses stemming from the unlawful act or practice giving rise to the litigation.

  • The nature and extent of these economic and non-economic injuries need to be identified through interviews with the complaining party and corroborating witnesses as well as a careful review of documentation.

  • The basis for claiming emotional distress damages also need to be explored through interviews with family members, close friends and professional associates, and health care providers (if appropriate). Emotional distress damages include "garden variety" injuries that do not or did not require intense medical and/or psychiatric treatment and pathological medical conditions that require medical and/or psychiatric treatment and for which a diagnosis, prognosis, and plan of treatment exist.

  • In order to begin to address these matters, it will be necessary to collect all pertinent medical records and elicit descriptive information concerning the nature, extent, and impact from witnesses - particularly, in the areas of day-to-day functioning and the enjoyment of life issues. It may be useful to focus on how the complaining party acted routinely before and after the act or acts of discrimination/retaliation. Photographs, anecdotes, or other evidence that will tell a story in a very human way can be very revealing and compelling. This information can often be elicited in a more persuasive manner from family members, close friends, and work colleagues as well as from the client who may be too embarrassed or outraged to be very helpful in this area.

 

Conducting Depositions

July 22, 2016

There are no express ethical rules that govern preparing for, taking or defending depositions. While many rules touch upon these matters, they often give conflicting signals. For example, Rule 1.3, comment 3 of the Code of Professional Responsibility requires that a "lawyer should represent a client zealously within the bounds of the law. In contrast, Rules 3.3 and 3.4 respectively caution that a lawyer should exhibit candor towards the tribunal and fairness to the opposing party and counsel. Ethical concerns commonly arise in the context of fulfilling client expectations that prize zealous representation as well as by a need to counter equally zealous or even outrageous conduct by opposing counsel who is ostensibly acting in his or her client's interest. In these situations, therefore, it may be necessary for the employment to take into account applicable ethical and judicial standards and tailor his or her conduct accordingly.

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