WHAT TO DO AND WHAT NOT TO DO WHEN YOU ARE SUED FOR EMPLOYMENT DISCRIMINATION

In the life of every company, there will come a time when it will face an employment discrimination lawsuit. It may allege sexual harassment, age discrimination, race discrimination or retaliation for having complained of discrimination. Employment discrimination litigation is the price businesses have to pay for being in business today and the stakes are usually substantial. The best approach is to be as professional in dealing with it as you are in dealing with other issues that affect your business. How a company initially responds to the lawsuit can have a great impact on the ultimate disposition of the case. A company that takes prompt and appropriate action in response to a complaint can save hundreds of thousands of dollars in attorneys’ fees, back pay, compensatory and punitive damages.

1.         Don’t go into denial.  The lawsuit is really happening; it should not be ignored and its potential impact cannot be underestimated. As we know from the Madison Square Garden case,  juries can award millions of dollars in damages to plaintiffs in these cases. Many company executives have difficulty accepting the fact that they are being sued. They actually believe that their employees “love” them and would never do anything to harm them. “How could she do this to me?” is a common cry we have heard from clients who go on to cite the many favors they have done for these employees, the loans they have given them, the misdeeds that they have overlooked. In response to this question, I like to tell these clients, “No good deed goes unpunished.” The employees who have borrowed money or who have continued their employment on borrowed time are the ones most likely to sue you.

2.         Retain an attorney.  This may seem overly obvious, but you would be surprised how often we are retained when there is little or even no time left to answer an employment discrimination complaint. The sooner counsel is retained, the sooner an investigation of the facts and research into legal issues can commence. Legal strategies can then be formulated which can lead to a possible motion to dismiss or the pleading of certain affirmative defenses in an answer to the complaint.

3.         Ascertain who your witnesses might be and locate them.  Potential witnesses must be identified, located and interviewed. These interviews must be conducted by your attorney; otherwise, the content of these interviews will be subject to discovery. Frequently, potential witnesses no longer work for the company or have moved out of the geographic area. It may be difficult to in some cases to locate them and secure their cooperation. In those circumstances, it may be necessary to subpoena them to appear as witnesses in a deposition.

4.         Ascertain what documents and records exist that are relevant to the case and take all necessary steps to preserve them.  This is especially true of electronic records. Under the Federal Rules of Civil Procedure, a defendant has the affirmative obligation to preserve these records. All employees with access to such records should be given instructions to retain and not delete such records. Automatic deletion programs must be modified to prevent the automatic deletion of e-mails and other electronic documents relevant to the case. In several cases, we have that e-mails from the plaintiff employee’s computer have proved to be very helpful to the employer’s defense. In one case, where the plaintiff had sued for sexual harassment, a search of her computer found numerous pornographic files which she had e-mailed to her work colleagues. This proved to be decisive in getting a successful outcome to the case. Employers must search the computers of plaintiff employees and utilize computer specialists to retrieve deleted e-mails and other documents from the hard drives.

5.         Prepare for your deposition.  The deposition can be as important and even more important than your testimony in a trial. Your testimony at a deposition establishes the parameters of what your trial testimony would be. Your deposition can be used to impeach any inconsistent trial testimony. You must prepare for it in the same way you would as if you were about to testify in trial. In fact, your deposition will most likely be the only opportunity you will have to set forth your side of the story since the vast majority of cases settle. Accordingly, the quality of your deposition testimony will have a great impact on what the settlement can be. You should be thoroughly familiar with the file including all documents that have been produced in discovery. You should meet with your attorney to prepare for your deposition.

6.         Take remedial action if necessary.  If the investigation of the case establishes shortcomings in the company’s procedures that resulted or contributed to the lawsuit, don’t wait until the lawsuit is resolved to establish proper procedures. If necessary, establish no discrimination and harassment policies, complaint procedures, and institute training of supervisors and employees regarding the company’s policies. This can result in reduction or elimination of punitive damages in case the lawsuit goes to trial.

7.         Finally, you should remember that in the legal process, all the parties are equal. At work, you may be the boss and the workers may jump at your command. However, in court, you and the plaintiff are treated the same. This requires some attitude adjustment for some company executives who are used to the deference they receive at work. All of a sudden, you are required to spend numerous hours searching and producing documents at the behest of the attorney for the employee and spending thousands of dollars in attorneys’ fees to counter the lawsuit. This is how the system works and the sooner there is acceptance of that fact, the greater your chances are for a successful resolution of the case.