Initiating Employment Litigation
An employee who believes the employer has discriminated against him or her, or has treated the employee unfairly may want to bring legal action against the employer. The employee essentially has to show the employer engaged in illegal activity that amounts either to prohibited discrimination or unfair treatment. In most cases, the employee must first file a complaint with the administrative agency responsible for implementing the applicable laws. The employee must file the administrative claims before the applicable deadlines expire. Failure to follow the administrative claims process usually results in the court dismissing the employee’s claim.
The law prohibits employers from discriminating against employees or applicants on the basis of race, color, age, sex, religion, national origin, disability, or retaliation.
*Some states include additional reasons not listed above.
Discrimination can manifest itself as workplace harassment or other similar mistreatment on the job.
Before the employee can bring suit against the employer in a court of law, the employee must first follow the administrative process. In the vast majority of cases, the administrative process requires the employee to first file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). A charge of discrimination is a signed statement asserting that an employer, union or labor organization engaged in employment discrimination. The charge requests the EEOC to take remedial action.
Once the employee properly files a Charge of Discrimination, the EEOC will investigate the case by reviewing employment records maintained by the employer. When the EEOC completes the investigation, the EEOC will issue a Notice of Right to Sue. If the EEOC has not completed its investigation within 180 days, the employee can request a notice of right to sue from the EEOC.
However, if age discrimination is the basis of the employee’s charge, the employee may file a lawsuit against the employer in court any time after 60 days have passed from the day the charge is filed. The employee need not wait until the EEOC completes its investigation to take it to court and receive employment litigation.
Unfair treatment in the form of pay disparities may constitute a violation of applicable labor or pay laws administered by the Department of Labor. In such cases, the employee must file an administrative complaint with the Department of Labor before taking the claim to court. These administrative complaints must be filed before the applicable deadlines pass.
Equal Pay Claims
An employee can take certain equal pay claims directly to court within two years from the day the pay discrimination took place. The employee does not need to first file an administrative charge with the EEOC.
Initiating the Lawsuit in Court
If an employee files a lawsuit in court before completing applicable administrative procedures, the court will dismiss the suit.
Once the employee receives a notice of right to sue from the EEOC, the employee has 90 days to file the lawsuit. Failure to meet that deadline will forever bar the employee’s lawsuit.
In a small percentage of cases, the EEOC will choose to litigate it against the employer on behalf of the employee. The EEOC has the discretion to litigate cases. When deciding whether to step in and file a lawsuit, the EEOC considers factors such as the strength of the evidence, the issues in the case, and especially the wider impact the lawsuit could have on the EEOC’s efforts to combat workplace discrimination.
What to Expect Once a Lawsuit is Filed
In every case, employment litigation should be the last resort. It is expensive and the outcome is uncertain. Here are the steps the parties need to follow in courtroom litigation:
1. Answer. The employer can respond by asking the court to dismiss the complaint if it is defective, such as the employee failed to follow the administrative claims process or missed important deadlines. Alternatively, the employer can file an answer.
2. Discovery. Once the employer answers the employee’s complaint, discovery begins. Discovery is an opportunity to find out what information the other party or parties have to support their claims and defenses. The employee and the employer can serve written questions (called interrogatories) on each other and request documents that may be relevant to the case. Most of the documents will be business records maintained by the employer, but occasionally the employee will have relevant documents. The parties can also take depositions of witnesses and experts under oath. The information uncovered in discovery can be used in trial.
3. Mediation. Due to the volume of cases pending in courts, the parties should expect to participate in a mediation process. This involves an impartial mediator trying to help the parties settle the case. Here all parties will come to understand the strengths and weaknesses of their positions.
4. Summary Judgment. If the parties cannot settle through mediation, the next stage is usually summary judgment. The parties will try to convince the court that the facts do not require a trial and the court should rule on the law in favor of one or the other. If the employer prevails on summary judgment, the case will be partially or completely dismissed. If the employee prevails, the court can rule fully or partially for the employee. The case will go to trial on any factual issues not decided by summary judgment.
5. Trial. At the trail phase in most cases, the parties will present their best factual and legal case to a jury and a judge. The role of the jury is to decide the facts, while the judge renders legal decisions based upon the jury’s decisions.
The trial begins with jury selection. The employee, as plaintiff, will then present his or her case first through witness testimony and evidence. At the conclusion of the plaintiff’s case, the employer has the opportunity to present a defense through witness testimony and other evidence. Once both sides have presented their cases, the court will give appropriate instructions to the jury on the applicable legal standards. The jury then deliberates and reaches a verdict.
Contact an Employment Litigation Attorney
An employee who has been the victim of discrimination or workplace harassment has a short amount of time to seek the protections afforded by law. An employer who has been accused of this conduct needs expert defense. The employment litigation process takes a toll financially and emotionally on the parties involved. Consult with an experienced employment litigation attorney as soon as possible.