Questions your employment attorney will ask the defendants during depositions in your employment discrimination lawsuit

Your employment attorney will depose (take the sworn testimony of) representatives of your former employer as part of his or her investigation into the facts underlying your case. Two key employer-witnesses will be deposed in almost every case – the person who made the discriminatory adverse employment decision (e.g., the decision to fire you) and the human resources representative. Here is a sample of the types of questions your employment attorney might ask these witnesses:

Questions to Be Directed to the Decision-Maker:

Did you play any role in the decision to [insert adverse employment action, e.g., fire, demote, refuse to promote] plaintiff?

  • What role did you play?
  • Who else played a role in the decision to [insert adverse employment action] plaintiff?
  • What role did the others play?
  • Who was the ultimate decision-maker?
  • Did [Employer]’s human resources department review this decision before it was implemented by [Employer]?
  • Did anyone review this decision before it was implemented by [Employer]?

You were aware that plaintiff was [insert plaintiff’s protected status, e.g., race, national origin, gender, age, disability] at the time the decision was made to [insert adverse employment action] plaintiff, correct?

  • Who else involved in the decision to [insert adverse employment action] plaintiff was aware that plaintiff was [insert plaintiff’s protected status] at the time the decision was made?

What was the reason for the decision to [insert adverse employment action] plaintiff?

  • Did everyone involved in the decision agree with this reason?
  • Did everyone involved in the decision agree with the ultimate decision?
  • Did anyone mention the plaintiff’s [insert plaintiff’s protected status]?
  • Did anyone involved in the decision make any derogatory references to [insert plaintiff’s protected status]?

Have any other employees ever been [insert adverse employment action which plaintiff suffered] for the same reason as plaintiff?

  • Who?
  • When?
  • Who were the decision-makers?
  • What were the circumstances?

Questions to Be Directed to Human Resources:

What position(s) did the plaintiff hold while employed at [Employer]?

  • Who were the plaintiff’s supervisors?

Who made the decision to [insert adverse employment action] plaintiff?

  • Who else played a role in the decision to [insert adverse employment action] plaintiff?
  • What role did the others play?
  • Who was the ultimate decision-maker?
  • Did the human resources department review this decision before it was implemented by [name of decision-maker]?
  • Did anyone review this decision before it was implemented by [name of decision-maker]?

Does [Employer] have a progressive discipline policy?

  • If yes, please describe.
  • If no, notwithstanding the lack of a progressive discipline policy, does [Employer] use progressive discipline in practice? If yes, please describe.
  • Is it accurate to say that if an employee has any serious performance problems, that would be documented in the employee’s personnel file?

Does [Employer] have a policy regarding performance evaluations?

  • If yes, please describe.
  • If no, does [Employer] give performance evaluations? How often?

Does [Employer] have a policy or practice of proving oral warnings to employees?

  • Under what circumstances?

Does [Employer] have a policy or practice of providing written warnings to employees?

  • Under what circumstances?

During the course of the plaintiff’s employment, did plaintiff receive any promotions?

  • During the course of the plaintiff’s employment, did plaintiff receive any demotions?
  • During the course of the plaintiff’s employment, did plaintiff receive any disciplinary action?
  • During the course of the plaintiff’s employment, did plaintiff receive any performance evaluations?