Tuesday, November 8, 2011

Dismissing Weak Claims

Sexual harassment week continues. Last post I addressed What is Sexual Harassment? The gist was that successful sexual harassment claims are harder to establish than some people think. Today’s post comes at it from the other angle: getting rid of the bad claims (“bad” as in baseless) is also harder than some people think.

While reading Herman Cain stories, I often see comments paraphrased as, “if Cain didn’t sexually harass anyone, then why did they settle?” I find that people are often shocked at how hard it is to get rid of bad claims. Employers can't just send a letter to the judge: "Dear Judge, this is one of them there 'baseless' lawsuits. Please dismiss posthaste." And we're done! Sorry, it doesn't happen like that.

I’ll state again that I don’t know what happened with Cain. But let’s assume for the sake of argument that the claim against him was completely baseless – no evidence, silly claim, would have been a garbage lawsuit. How does an employer get rid of such a claim without settling?

Agency Investigation

- Before filing a lawsuit, the employee must go to the EEOC or equivalent state agency (for my PA readers, the PHRC).

- The agency conducts an investigation. The employer will produce information, affidavits, conduct interviews, etc.

- The employer may be called on to participate in negotiations or mediation.

- If the agency finds no evidence of discrimination or harassment, the agency will drop the case . . . but issue a “Right to Sue” letter to the employee.

At this point, months if not years have gone by. And only now does the lawsuit even begin.


- If the employee files a Complaint that is obviously silly – or, even assuming everything in the complaint is true, still doesn’t constitute sexual harassment – the employer can move to dismiss the case. Even this involves drafting a motion to dismiss and a brief in support of it (with proper legal research and case citations).

Maybe, the case ends here. What about cases in which the employee’s complaint makes vague allegations, or just makes up a bunch of stuff with no evidence? The employer must then:

- Draft an Answer

- Written discovery: answering a bunch of questions from the plaintiff (interrogatories); identifying, reviewing, and providing documents to the plaintiff; and then serving the plaintiff with the employer’s own interrogatories and requests for production of documents.

- Depositions: Days worth of depositions in which attorneys question the plaintiff, witnesses, other employees (don’t forget the costs of hiring a court reporter to be there every day!).

- Summary judgment: If there’s still no evidence, the employer can file a motion for summary judgment with statement of material facts and brief in support (including legal research).

Phew, assuming there is no evidence and the motion for summary judgment is successful, it’s finally over (unless the employee appeals)! But only after years and easily tens of thousands of dollars in legal fees.

Still wondering why an employer might settle a bad claim? Next post: Settlement or Severance.

Image: EEOC Headquarters from Wikimedia Commons under Attribution-Share Alike 3.0 Unported license, by AgnosticPreachersKid.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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