Defending Plaintiff’s Deposition

From Litigating Employment Discrimination Cases by Andrew Friedman

One of the biggest mistakes you can make in defending the plaintiff’s deposition is failing to aggressively defend the plaintiff. An aggressive defense does not mean acting in a rude, obnoxious, or unprofessional manner. Rather, it simply means conducting one’s self in a polite but firm manner to protect the plaintiff from improper defense tactics and from the plaintiff’s failure to give his best testimony. See §6:244 (Defending Plaintiff at Deposition).

Be on guard for several improper defense tactics, including intimidation, inaccurate summaries of plaintiff’s testimony, and inappropriate questions. See §8:111.2.

Guard Against Improper Defense Tactics [§8:111.2]

Do Not Allow Plaintiff to Be Intimidated

Look for several improper defense tactics. The first tactic is pure and simple intimidation, and it manifests itself in many different forms—raising one’s voice, leaning across the conference room table or otherwise invading the plaintiff’s personal space, interrupting the plaintiff’s testimony, making belittling remarks about the plaintiff and/or the plaintiff’s testimony (e.g., questioning the plaintiff’s honesty or ability to recall). In response to this tactic, respectfully request that defense counsel cease. If defense counsel continues, consider making a statement similar to the following:

“[name of defense counsel], this is now the second time that you are [describe inappropriate conduct—e.g., raising your voice, invading my client’s personal space, making inappropriate personal attacks on my client]. If you continue to engage in this conduct, you will leave me with no choice but to suspend this deposition and bring this matter before the court.

If defense counsel persists, make an appropriate comment on the record, suspend the deposition and leave. Once you stand up to defense counsel’s bullying tactics (and the defendant realizes it is paying a lot of money without any results), defense counsel will behave more professionally.

Inaccurate Summary of Plaintiff’s Testimony

The second tactic occurs when defense counsel routinely attempt to summarize the plaintiff’s testimony, but in doing so distorts the testimony in a manner that favors the defense. In response to this tactic, object on the record (e.g., “Objection, misstates the witnesses prior testimony), and train the plaintiff to carefully parse through such summaries and only agree if the summary is completely accurate.

Asking Inappropriate Questions

The third tactic takes place when defense counsel asks plaintiff inappropriate questions—usually questions that are not relevant to the litigation and that unreasonably invade the plaintiff’s privacy rights. In response to such questions, you must carefully weigh the plaintiff’s privacy right against the amount of time and money that will be required to defend against a motion to compel.

Another type of inappropriate question is one that calls for a legal conclusion (e.g., “State all facts that support your belief that you were discriminated against because of your race,” or “Please identify each and every act of sexual harassment to which you allege you were subjected,” or “Why do you believe you were retaliated against”). Although there is not much authority discussing this issue, you may refuse to allow the plaintiff to answer deposition questions calling for a legal conclusion and, instead, state that the question is more appropriately asked in an interrogatory. Alternatively, you may simply object to the question on the ground that it calls for a legal conclusion.

Practice Pointer:

Train plaintiff to respond to your objections

Coach the plaintiff ahead of time to make some comment about not being a lawyer following your objection that the question “calls for a legal conclusion.”

Confirm Plaintiff Is Physically Ready to Testify [§8:111.3]

With respect to protecting the plaintiff from himself, you must make sure that the plaintiff is giving his best testimony. This means asking the plaintiff prior to the deposition how he slept, how he feels, and whether he is ready to go forward with the deposition. In too many cases, plaintiff’s counsel neglect to ask these questions and the plaintiff ends up giving horrible testimony because he got no sleep the night before or has the flu or a severe headache. Do not allow the plaintiff to testify under these circumstances.

Contemporaneously Correct Errors and Omissions [§8:111.4]

Make sure the plaintiff contemporaneously addresses any mistakes, errors and/or omissions in his testimony. Many plaintiff’s attorneys believe that they can simply “correct” the testimony either when the plaintiff reviews his testimony or by way of a declaration submitted by the plaintiff in opposition to the defendant’s motion for summary judgment. In light of the case law expressly holding that a plaintiff cannot contradict his deposition testimony by way of a declaration submitted in opposition to a motion for summary judgment [see §8:91] and the fact that many judge’s and jurors will view the plaintiff’s deposition “corrections” suspiciously, this strategy is exceedingly risky. The better approach is to have the plaintiff address any mistakes, errors and omissions during the deposition.

There are two ways that this can be handled. First, during a break or at lunch, you can explain that the plaintiff made a mistake that must be corrected and then, upon resumption of the deposition, the plaintiff can say something to the effect of: “I need to add something to what I said earlier.” A slightly modified version of that approach (which appears less contrived) is to have the plaintiff wait for 15 or 20 minutes following the break to make the foregoing statement.

Second, you can ask the plaintiff questions at the end of the deposition in an effort to correct any earlier mistakes. The risk here is that the plaintiff may either give further bad testimony or open up a line of questioning that defense counsel had not thought of. Some plaintiff’s counsel ask questions at the end of the deposition to correct mistakes that may have been made and also to obtain testimony regarding facts that might be helpful defeating summary judgment. The benefits of having the plaintiff correct the record and/or add additional facts at the time of the deposition are two-fold. First, judges tend to give deposition testimony much more credibility than they do testimony by way of declaration. Second, defense counsel rarely, if ever, make evidentiary objections to deposition testimony, whereas as they invariably make every conceivable challenge to testimony by declaration.

Andrew H. Friedman, author of Litigating Employment Discrimination Cases has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement.

Document Requests

From Litigating Employment Discrimination Cases by Andrew Friedman

Two types of discovery are particularly useful in seeking direct evidence of discrimination—document requests and depositions.

With respect to document requests, you should request all documents concerning: (1) the plaintiff; and (2) the decision-making process. Seek all versions, drafts, and copies of the requested documents that differ in any way from the requested documents. For example, in a failure to hire case, ensure that the defendant produces not just the resume that the plaintiff submitted, but also any copies of the resume that are in any way different from the original resume (e.g., copies of the resume onto which the decision-makers may have made incriminating comments). Request copies of all e-mails written about the plaintiff. See generally Ch. 6, Discovery, §6:134 (Document Requests Propounded by Plaintiff); see also Form 6J-1 (Request for Documents Propounded by Plaintiff).

For example, consider sending out the following basic document requests:

    PLAINTIFF’s complete personnel file(s) (including the jacket or cover of the file).

    Any and all personnel documents that RELATE OR PERTAIN TO PLAINTIFF, regardless of whether they are contained in PLAINTIFF’s personnel file.

    Any and all personnel manuals, employee handbooks, benefits manuals and salary schedules which were applicable to PLAINTIFF at any time during his employment with the COMPANY.

    Any and all supervisors manuals which were in effect at any time during PLAINTIFF’s employment with the COMPANY.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO the COMPANY’s policies or procedures regarding performance evaluations which were in effect at any time during PLAINTIFF’s employment.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO YOUR policies or procedures for terminating the employment of one of YOUR employees.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO YOUR policies or procedures for disciplining one of YOUR employees.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any interview(s) which YOU, or anyone acting on YOUR behalf, had with PLAINTIFF before YOU hired him, including, but not limited to, any notes from such interviews.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any performance evaluations or job reviews (including all drafts and/or versions thereof) of PLAINTIFF during his employment with the COMPANY.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any write-ups, complaints, comments, criticisms or warnings, oral or written, concerning PLAINTIFF’s employment with the COMPANY.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any disciplinary action or counseling given to PLAINTIFF during his employment with the COMPANY.

    Any and all DOCUMENTS describing the work duties and/or responsibilities of the [name of plaintiff’s position].

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any investigation conducted by YOU in connection with any charge, complaint, allegation, grievance and/or report, formal or informal, made by PLAINTIFF about [insert type of complaint made (e.g., discrimination, harassment, retaliation)].

    Any and all e-mails, notes, memoranda or other DOCUMENTS that RELATE OR PERTAIN TO any and all COMMUNICATIONS by, between or among any of YOUR current or former employees, officers or representatives that in any way RELATE OR PERTAIN TO PLAINTIFF.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any charge, complaint, allegation, grievance and/or report, formal or informal, by any of YOUR current or former employees about [insert type of complaint made (e.g., discrimination, harassment, retaliation)].

    All DOCUMENTS that RELATE OR PERTAIN TO, or tend to prove, disprove, or negate the allegation made in paragraph [insert substantive paragraph number from complaint and repeat for every substantive paragraph] of the COMPLAINT that “[insert language from paragraph].”

    All DOCUMENTS that RELATE OR PERTAIN TO, or tend to prove, disprove, or negate YOUR [insert affirmative defense number (e.g., First, Second)] Affirmative Defense: [insert language from appropriate affirmative defense.”]
    Any and all insurance policies that may, in whole or in part, provide coverage for any of the claims asserted by PLAINTIFF in his COMPLAINT.

    Any and all DOCUMENTS that RELATE OR PERTAIN TO any claims YOU have made to an insurance company regarding any of the claims asserted by PLAINTIFF in his COMPLAINT.
    PLAINTIFF’s complete salary and wage records, payroll records, and W-2 forms for every year of his employment with the COMPANY.

    For any computer-generated documents produced in response to any of the foregoing demands, please produce any and all computer records or other DOCUMENTS that evidence or reflect the dates on which each such document was prepared and/or modified.

With respect to depositions, depose all of the decision-makers, all of the people who contributed recommendations and information to the decision-makers, and anyone with whom the decision-makers discussed the reasons for their decisions.

Andrew H. Friedman, author of Litigating Employment Discrimination Cases has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement.

Shaping the Unripe Employment Case

From Litigating Employment Discrimination Cases by Andrew Friedman

Occasionally, a prospective client’s case may not be ripe for litigation. For example, the prospective client may be encountering comments of a sexual nature at the workplace which have not quite risen to the level of sexual harassment (e.g., the comments, though escalating, are not yet sufficiently severe or pervasive to create a hostile working environment). Similarly, a prospective client with a disability that has not been disclosed to the employer may desire to sue because his employer has failed to make a reasonable accommodation. Neither of these cases is ripe for litigation. In these situations, you should not necessarily reject the case and tell the prospective client to come back when the case ripens. Rather, you should consider accepting the case with the understanding that, at least initially, you are only going to help shape the case.

The goal in shaping the case is four-fold:

  • To provide the employer with an opportunity to take remedial action to correct the unlawful conduct;
  • To satisfy any prerequisites regarding the prospective client’s need to place the employer on notice as to the unlawful conduct prior to filing suit; and
  • To “set up” the employer and create additional claims in the event the employer is unwilling to comply with it legal obligations. (For example, a complaint letter inevitably allows the prospective client to assert a retaliation claim, as most employers simply cannot stop themselves from taking adverse employment actions against employees who complain.)
  • To ensure the involvement of the highest-level officials of the company such that the prospective client will not only be able to involve these officials in discovery and trial but also to maximize the availability of punitive damages.

Caution:

Shaping the case may result in employee’s termination

You must make clear to the prospective client that your advice and the actions taken in shaping the case may lead to the termination of her employment. Out of an abundance of caution, some attorneys specifically insert into their engagement letters language clearly advising the prospective client of this possibility:

Although we may provide you with our opinion regarding your employment situation, we cannot guaranty or promise any particular result. Indeed, it is possible that as a result of our advice, your employer will terminate your employment or take some other adverse employment action against you. You acknowledge that we have not made any promises or guarantees about the outcome and that any opinion offered by us in the future will not constitute a promise or guarantee.

Five-Part Process

1.   Complaint Letter

Shaping the case is normally accomplished in a three-part process. First, and most importantly, help the prospective client prepare a letter (e.g., an internal complaint) that explains the unlawful conduct to either the employer’s presidentor, in some cases, to the Director of Human Resources. The purpose of the letter is to give the employer the opportunity to correct the unlawful employment practice.

Explain both the applicable law and the purpose of the complaint letter to the prospective client, and then ask him to draft the letter. You should then revise the letter to ensure that it sufficiently places the employer on notice as to the unlawful employment practices, and that it does not contain any irrelevant or potentially harmful statements by the prospective client. In revising the letter, review any employer documents, policies, or employee handbooks to ensure that you comply with any employer complaint procedures. Finally, have the prospective client review the complaint letter to ensure that it is completely accurate and that he understands it.

Practice Pointer:

Prospective client must understand every word in letter

It is critical that the prospective client understand not only the complaint letter as a whole, but also each individual word within the letter. One of the most embarrassing and potentially damaging situations can occur in deposition or at trial when the client is forced to admit that he does not know the meaning of certain words or sentences in his own letter. Similarly, the attorney should take the time necessary to explain why the letter is being sent. This will avoid the humiliation that would occur when the prospective client testifies, in response to the question why he sent the letter, “because my attorney told me to.”

Practice Pointer:

Keep client’s “voice” in letter

Although it might be more efficient for you to draft the initial complaint letter, the process outlined above ensures that the prospective client’s “voice” is maintained in the letter. This is important because the letter will almost certainly become a critical piece of evidence in the case. If the letter looks like it was written by an attorney, it may lose some impact and, in the worst case, anger a jury which believes the letter was written solely to “set up” the lawsuit.

2.   Employee Notes

The second part of shaping the case requires the prospective client to keep detailed notes regarding the unlawful conduct and how it affects the prospective client’s emotional well-being, as well as his ability to complete assigned job duties. Instruct the prospective client that these notes are create for your review and will be protected from discovery by the attorney-client privilege. At a minimum, the notes will be useful in preparing both the prospective client for deposition and trial and for responding to written discovery requests. Occasionally, if the notes are well written and helpful, the attorney-client privilege can be waived, and the notes can be used as evidence to show that the prosp

ective client contemporaneously documented the incidents.

3.   Witness Creation

The third phase of shaping the case may require witness creation. That is, if the potential client has not told anyone about the discrimination/harassment, counsel and the potential client should discuss whether the prospective client should begin telling carefully selected individuals about it so that there will be witnesses who were contemporaneously told by the potential client about the discrimination/harassment. While reality demonstrates that many plaintiffs are simply too embarrassed/humiliated/scared to contemporaneously tell others about the harassment/discrimination to which they are being subjected, defendants and their counsel (and some judges and jurors) tend not to believe a plaintiff who has not contemporaneously informed others about the unlawful conduct. Hence, it may be important to create witnesses.

4.   “Perfect” Employee

The fourth phase of shaping the case requires the prospective client to be the “perfect” employee pending the resolution of his claim. This means, among other things, that the prospective client timely report to work each day, perform all of his job duties in an excellent manner, politely and professionally communicate with the employer and all of its representative and otherwise fully comply with all of the employer’s policies. This also means cautioning the employee that the workplace may well become significantly more hostile than it was prior to the submission of the employee’s letter, and that acting the part of the “perfect” employee will take substantial efforts.

The fifth phase of shaping the case requires counsel and the potential client to determine whether the prospective client should be treating with a mental health care professional. As with witnesses, reality demonstrates that many plaintiffs do not seek care from mental health professionals regarding the harassment/discrimination to which they are being subjected. This is probably because of expense and/or the perceived stigma that is still associated with seeing someone for mental issues. Defendants and their counsel (and some judges and jurors) tend to believe that a plaintiff who has not sought help from a mental health care professional has not actually suffered any emotional distress. You should inform the prospective client that you are not a mental health care professional but that it would be helpful to his or her case if he or she were being treated by a mental health care professional. Since most defense counsel attempt to determine how and why the plaintiff began treatment with a mental health care professional, it is important that the plaintiff be able to truthfully say that the treatment began for some reason other than the suggestion of counsel. Typically, the best way to accomplish this is to have the plaintiff see his or her physician and inform the doctor about the unlawful discrimination/harassment and the symptoms that it is causing. Most doctors will then refer the plaintiff to a mental health care professional. This way, the plaintiff can truthfully say that he or she was referred to the mental health care professional by his or her doctor.

Andrew H. Friedman, author of Litigating Employment Discrimination Cases has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement.

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Op-pose By Any Other Name Would Smell as Sweet (for Employees)…

By Tod F. Schleier, author of Deposing & Examining Employment Witnesses

On June 26, 2008, the United States Supreme Court interpreted Title VII’s anti-retaliation provisions and held that the opposition clause protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation in Crawford v. Metropolitan Government of Nashville and Davidson Cty. In reversing a decision by the Sixth Circuit Court of Appeals, the Court gave a broad interpretation to the anti-retaliation provisions and held that Title VII’s anti-retaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an investigation initiated by the employer.

The trial court and Sixth Circuit had ruled for the employer.  The Sixth Circuit concluded that Crawford had not engaged in protected activity when she gave a statement during an internal investigation initiated by her employer.  Under the Sixth Circuit analysis, protection against retaliation is only available under 2 circumstances:  1) if the employee initiated the complaint or 2) the employee filed a formal charge with the EEOC.  The lower court stated that the absence of a pending EEOC charge made Crawford’s participation a non-protected activity.  It held that one must have initiated a proceeding in overt opposition to his or her employer and have a pending EEOC charge to establish a prima facie case of unlawful retaliation.  Because Crawford had done neither, her participation in the investigation did not constitute “opposition” within the meaning of title vii to make her activities protected.

In an interesting semantic discussion of the term “oppose,” Justice Souter noted that because “oppose” is undefined by statute, it should carry its ordinary dictionary meaning of “resisting” or “contending against.”  Justice Souter’s opinion stated that Ms. Crawford’s statements made during the investigation, which disapproved her supervisor’s boorish sexual behavior was therefore covered by the opposition clause of Title VII.  The Court noted that “oppose” goes beyond “active, consistent” behavior in ordinary discourse and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it.  Therefore, a person can “oppose” by responding to someone else’s questions during an investigation, even if the person did not initiate the discussion.

The Court noted that the number of retaliation claims filed with the EEOC has grown enormously in recent years, citing EEOC statistics showing that retaliation charges filed with the EEOC doubled between 1992 and 2007.  The Crawford case represents a continuing trend by the Supreme Court to provide protection to employees who are retaliated against when they engage in protected activity and will result in more retaliation cases being filed by attorneys representing employees.

Direct Examination Questions: Employer’s “Investigation” Was Confrontational and Threatening

Excerpted from Deposing & Examining Employment Witnesses by Tod F. Schleier

Q. After Mr. Green agreed with Mr. Black’s disciplinary action, did you file an internal complaint of harassment with XYZ’s human resources department?

Q. Did XYZ conduct an investigation of your complaint of harassment?

Q. Were you interviewed by Human Resources?

Q. When?

Q. Who was present?

Q. So Mr. Green and a court reporter were present during that interview, as well as Mr. Young from Human Resources?

Q. I will show you Exhibit 167. Is that a transcript of the interview?

Q. Was Mr. Green simply observing, or did he participate in the process?

Q. Did you have a representative present during the interview?

Q. Do you believe you had a fair chance to voice your concerns?

Q. Why not?

Q. You believe that Mr. Young was confrontational?

Q. Did Mr. Young make any threats against you?

Q. So you were threatened with additional discipline if XYZ later determined that you had falsely and maliciously accused Mr. Black of harassment?

Q. I show you Exhibit 206. Is this the results of XYZ’s investigation into your complaint?

Q. XYZ found your complaint of harassment to be false and invalid?

Q. XYZ also disciplined you for disrupting the workplace, correct?

Q. Were you warned that you would receive additional discipline if you filed future unfounded complaints?

Q. At this point, did you fear you might be terminated for reporting what you, in good faith, believed to be discrimination and retaliation?

PRACTICE POINT:

Reinforce employee’s good faith belief in the alleged discrimination.

By this time in the direct examination, the jury should understand the picture you are trying to paint of a causal connection between the plaintiff’s protected activity and the swift retaliatory response from the employer. It is important that they also understand why the employee believed that the company’s conduct was discriminatory, to show his “good faith belief” in his complaints. Do not miss any opportunity to stress that the employee honestly believed that the employer was discriminating against him.

Tod F. Schleier is a partner in the law firm of Schleier Law Offices, P.C. in Phoenix, Arizona. He has practiced as a plaintiff’s employment lawyer for nearly three decades. Mr. Schleier has been recognized continuously by Best Lawyers in America since 1989, recognized by Chambers as one of the top employment lawyers in Arizona, has an AV rating in Martindale Hubbell and was ranked as one of Arizona’s employment Super Lawyers in 2007. In 2001 he was inducted as a Fellow in The College of Labor and Employment Lawyers for his career-long achievements as an employment lawyer.

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Five Key Supreme Court Decisions Affect Age Discrimination Law

by L. Steven Platt, author of Age Discrimination Litigation

There have been several key developments in Age Discrimination law in the past year. There were five key U.S. Supreme Court decisions.

In the disparate treatment area, the U.S. Supreme Court in Kentucky Retirement Systems v. EEOC, analyzed an employer’s flexibility in setting eligibility criteria in complex retirement benefits system.

With respect to disparate impact, in Meacham v. Knolls Atomic Power Laboratory, the Supreme Court resolved questions concerning the burdens of production and proof for the Reasonable Factor Other than Age (RFOA) defense.

In  Sprint/United Mgmt. Co. v. Mendelsohn, the Supreme Court looked at so-called “me too” evidence and provided guidance to lower courts on the admissibility of this type of evidence to show age discrimination.

In Gomez-Perez v. Potter, the Supreme Court resolved an open question as to whether federal government employees can sue for retaliation under the ADEA.

Finally, in Federal Express v. Holowecki, the Supreme Court discussed the necessary elements for an individual’s EEOC submission to qualify as an actionable “charge” of discrimination.

Kentucky Retirement Systems v. EEOC

In its opinion in Kentucky Retirement Systems v. EEOC, the Supreme Court ruled in a 5-4 opinion written by Justice Breyer, that Kentucky’s disability retirement system does not violate the ADEA, even though age is a specific factor used in calculating benefits for some workers. The Court concluded that Kentucky’s retirement system was not “motivated” by age animus but rather was organized around the “analytically distinct” concept of “pension status.” Therefore, the Court held that a retirement plan does not violate the ADEA when it conditions pension eligibility on age but then discriminates on the basis of pension status. The Court held that an ADEA plaintiff still must show that disparate treatment is “actually motivated” by age and not pension status.

The majority relied on the Court’s 1993 ruling in Hazen Paper Co. v. Biggins, which held that discrimination based on pension status does not violate the ADEA unless it is used as a “proxy for age.” The majority said that the Kentucky Retirement System relied on a “clear non-age-related rationale” for the disparities in its disability retirement plan which provided benefits for workers at the level they would have received had they become disabled after reaching eligibility for normal retirement benefits. When the pension scheme is viewed as a whole, the Court held that the fact that older disabled workers receive fewer years of service credits than younger disabled workers does not per se violate the ADEA because the disparity results not from age but from employers lawfully conditioning pension eligibility on age.

The dissenting opinion, written by Justice Kennedy and joined by Justices Scalia, Ginsburg, and Alito, found the Kentucky plan to be discriminatory on its face. They said that the majority opinion undercuts the basic framework of the ADEA which prohibits age discrimination absent some specific exemption or defense provided by law.

The dissenters worried that the majority’s approach will allow facially discriminatory age-based classifications to pass legal muster unless plaintiffs can show the classifications were “motivated” by age.

This decision makes it more difficult to successfully challenge pension programs under the ADEA, since the “factors” set forth by the majority will most likely be present in most pension plans.

Meachum v. Knolls Atomic Power Laboratory

In its June 19, 2008 decision in Meacham v. Knolls Atomic Power Laboratory , the Supreme Court held that the ADEA requires an employer to prove as an affirmative defense that a workforce reduction plan is based on non-age related, reasonable factors other than age to defeat an ADEA disparate impact claim.

In a 7-1 decision, the Supreme Court held that when an employer engages in practices that place a disproportionate burden on older workers, the employer has the burden of persuasion of showing that its actions were based on reasonable factors other than age. The decision eases the burden on plaintiffs who bring disparate impact claims under the ADEA.

The case arose after Knolls Atomic Power Laboratory laid off thirty-one workers. Of those, thirty of the thirty-three were over the age of forty.  Justice Souter held that Congress designed the RFOA exception to the ADEA to be an affirmative defense for which the employer bears the burden of proof.  Justice Souter also noted other cases where it had held similar provisions to be affirmative defenses with the employer bearing the burden of proof in two other remedial labor statutes, the Equal Pay Act and the Fair Labor Standards Act.

Justice Souter said that, “If there were any doubt, the stress of the idiom ‘otherwise prohibited’ . . . would dispel it.” Justice Souter noted that “[t]he amendment in the aftermath of Betts shows that Congress understands the phrase the same way we naturally read it, as a clear signal that a defense to what is ‘otherwise prohibited’ is an affirmative defense, entirely the responsibility of the party raising it.”

Finally, Justice Souter addressed the concern that this decision would make age discrimination cases easier to win than race discrimination or sex discrimination cases. Souter said that ADEA claimants must point to a specific unreasonable employment practice which causes the disparity, which he said “is not a trivial burden.” Second, he noted that “the only thing at stake in this case is the gap between production and persuasion,” and the decision will only affect the outcome of a decision where the evidence is symmetrical.

Sprint/United Mgmt. Co. v. Mendelsohn

In this decision the Supreme Court looked at the admissibility of so-called “me too”evidence of other acts of discrimination perpetrated by the same individuals. The defendant in this case moved in limine to exclude the testimony of former employees who alleged they had also been discriminated against by supervisors who had no role in the employment decision that Mendelsohn was challenging. The defense moved to exclude this evidence on the grounds that it was irrelevant under Fed. Rules Evid. 401, 402, and was unduly prejudicial, under Rule 403. The District Court granted the motion and the Tenth Circuit elevated the ruling to a per se rule which the Supreme Court rejected. The Court held that the evidence was relevant and not unduly prejudicial.

Gomez-Perez v. Potter

In Gomez-Perez v. Potter, the Supreme Court held that Section 633a(a) of the ADEA prohibits retaliation against a federal employees who complain about age discrimination.  In reaching this conclusion, the Court followed the reasoning of two prior decisions that held that retaliation is covered by similar language in other antidiscrimination statutes: in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237 (retaliation claims can be brought under 42 U. S. C. §1982) and Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 173-79 where the Court held that Title IX of the Education Amendments of 1972, 20 U. S. C. §1681(a), which prohibits “discrimination” “on the basis of sex” in educational programs receiving federal aid, prohibits retaliation under Title IX).

Federal Express v. Holowecki

In Federal Express Corp v. Holowecki the U.S. Supreme Court on February 27, 2008, ruled in a 7-2, decision, that the filing of what the EEOC calls an “intake questionnaire” stops the statute of limitations and gets the ball rolling so to speak. The issue presented was whether the EEOC’s “intake questionnaire” can serve as a “charge,” where the statute doesn’t define what a “charge” is and where the EEOC’s regulations fill in the gaps and say that it is a charge. The Court deferred to the EEOC’s interpretation and held that the intake questionnaire does constitute a “charge” within the meaning of the Act.

L. Steven Platt, author of Age Discrimination Litigation has litigated ADEA cases for 30 years. He has tried over 100 cases to verdict in Federal District Courts and state courts and has handled cases, appeals and amicus briefs in jurisdictions ranging from California to New York.

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Age Discrimination Litigation
by L. Steven Platt

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Deposing & Examining Employment Witnesses
by Tod F. Schleier



Employment Evidence
by Eugene Hollander


Litigating Employment Discrimination Cases
by Andrew Friedman


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