An employer's first experience defending a harassment case can be a harsh introduction to the challenges and biases of the American legal system. Empowered with some basic knowledge about the process, HR/benefits professionals can survive the ordeal and shine in the eyes of senior management.
Harassment disputes rarely begin life at the courthouse. Victims must first exhaust administrative remedies. Employers may also have a mandatory internal grievance procedure. Often, an employer will already have investigated the claim. A prompt, thorough and well-documented investigation of any complaint of harassment is crucial. The product of the investigation should be written as though it will be the first exhibit shown to a jury.
The company's awareness of the lawsuit triggers two immediate obligations. First, management should identify any insurance policy that could provide coverage and immediately notify the carrier (in writing) of the suit.
Second, determine if and when a response to the complaint is due to prevent a default from being entered. A default can lead to an automatic judgment if the company does not respond within the statutory period (often 30 days). If there is insurance, the carrier assigns an attorney who will respond. Otherwise, the company must retain an attorney to protect against a default.
At this stage, attorneys recommend internally circulating a litigation hold memorandum, instructing recipients to preserve documents concerning the claimant and the claim. It may become necessary to thoroughly search for electronically stored communications (email) with or about the claimant or claim. The litigation hold helps ensure these are preserved in case the company regularly purges emails from its system.
Discovery refers to the gathering of evidence to pursue (or defend) the case. The most common method is document requests. Attorneys send requests for categories of documents. The company's attorney works with the company to locate and copy responsive materials for production. If disclosure of certain documents infringes on employee privacy or reveals company secrets, the court may enter a protective order to limit dissemination.
Detailed searches for documents, including emails, can be tedious. But few things frustrate management more than learning late in the game that a previously defensible case has suddenly gone bad based on the late disclosure of a key game-changing or smoking-gun document which a diligent search would have uncovered earlier.
Depositions are sworn question-and-answer sessions that are recorded verbatim by a court reporter. Cases that ultimately proceed to trial can be won or lost solely on the deposition testimony. Effectively responding to deposition questions is an art; every hour spent preparing the employee-witness for his or her deposition is an hour well spent.
Lawsuits generally end in settlement, summary judgment, or a verdict following trial. Most cases resolve through settlement. Meaningful settlement discussions can occur at any time, but there are a few key opportunities, like before the suit is filed, after the plaintiff's deposition and before a summary judgment hearing or trial, when negotiations may prove fruitful.
A mediator or neutral third party can sometimes penetrate through attorney posturing or party hostilities to make negotiations more meaningful. Mediators are expensive, but they often have experience in employment law and/or jury trials, making their participation worth the investment.
Alex W. Craigie is a partner at the Dykema law firm, focusing on employment law. Reach him at email@example.com.
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