Common defenses to employment cases

The defenses that an employer might use will depend on the circumstances of the case. However, the following are some of the more common defenses that employers use in employment cases:

  • The EEOC charge was not filed in a timely manner.
  • The EEOC charge does not cover all the claimed categories of discrimination alleged in the employee’s Complaint.
  • The alleged harassment was not severe or pervasive.
  • Harassment did not alter the terms and conditions of employment.
  • The employee did not avail himself or herself of the employer’s harassment policy.
  • Any alleged sexual harassment was welcomed.
  • The employee participated in sexual banter.
  • Any discriminatory comments were “stray remarks.”
  • The same person who hired the employee, fired the employee. (This is referred to as the “same actor” inference in age discrimination cases.)
  • The employee was replaced by a member of the same protected category who is better qualified.
  • Comparators are not similarly situated.
  • There is no evidence of pretext.
  • The employee did not request any accommodation of his or her disability.
  • The employee could not perform the essential functions of the job, with or without accommodation.
  • The employee did not qualify for FMLA leave.
  • The employer had good cause to terminate the employee.
  • There is no evidence of causation. (This is a defense in retaliation cases.)
  • There was no adverse employment action. (This is a defense in retaliation cases.)
  • Atmosphere of discrimination in work environment does not support a constructive discharge standard.
  • The employee failed to mitigate his or her damages.
  • The employee had pre-existing physical or psychological conditions.
  • Other stressors in the employee’s life caused or contributed to mental and emotional distress.
  • A defense is provided by after-acquired evidence (e.g., resume fraud, taking confidential documents from the workplace, or misusing a company computer).