Questions you may be asked by the employer’s attorney during your deposition in your employment discrimination lawsuit

Your former employer’s attorney will depose you (take your sworn testimony) as part of his or her investigation into the facts underlying your discrimination lawsuit. Here is a sample of the types of questions you may be asked:

General questions regarding your (the “plaintiff’s”) discrimination claim

Do you believe that [Employer] discriminated against you because of your [protected status, i.e., the basis of your discrimination lawsuit – your age, race, gender, disability, etc.]?

What did [Employer] do to you that you believe constitutes discrimination?

  • Are there any other incidents in which you believe that [Employer] discriminated against you because of your [protected status]?
  • Have you now identified each and every incident in which you believe that [Employer] discriminated against you?
    For each discriminatory incident you identified, the employer’s attorney will ask follow-up questions, including:

    • When did the incident take place?
    • Where did the incident take place?
    • Who were the decision-makers?
    • Who had input into the decision?
    • Who was present when the incident took place?
    • What was said?
    • What did you say?
    • Any documents regarding this incident?
    • Where are the documents?
    • Did you complain to anyone about this incident?
    • Did you tell anyone about this incident?
    • Did anyone ever tell you that this incident took place because of your [protected status]?
    • Why do you believe that this incident took place because of your [protected status]?
    • Were you performing your job duties and responsibilities satisfactorily at the time of the incident?

Why do you believe [Employer] discriminated against you because of your [protected status]?

  • Do you believe that [Employer] would not have [insert discriminatory adverse employment action, e.g., demoted, transferred, laid off, terminated] you if you had not been [protected status]?

Do you believe that any other employee of [Employer] has been discriminated against because he or she is also ______ [shares your protected status – e.g., over the age of 40; a woman, etc.]? If so:

  • Who?
  • When?
  • Where?
  • How?

Questions regarding “direct evidence” of discrimination

Did you ever hear [name of decision-maker] make any derogatory remarks about your [protected status]?

  • When?
  • How long before your [discriminatory adverse employment action] was this remark made? Where?
  • Anyone else present?
  • Exactly what was said?
  • Any documentation regarding this remark?
  • This remark was not made in connection with your [discriminatory adverse employment action], correct?
  • Did you say anything in response?
  • If yes, what?
  • Did anyone else say anything in response? If yes, who? What was said?
  • Did you ever complain about this? To whom? When? What did you say?

Did you ever hear [name of decision-maker] make any jokes about your [protected status]?

  • When?
  • How long before your [insert adverse employment action] was this joke made?
  • Where?
  • Anyone else present?
  • Exactly what was said?
  • Any documentation regarding this joke?
  • This joke was not made in connection with your [insert adverse employment action], correct?
  • Did you say anything in response? If yes, what?
  • Did anyone else say anything in response? If yes, who? What was said?
  • Did you ever complain about this? To whom? When? What did you say?

Did you ever hear [name of decision-maker] make any comments or statements about your [protected status]?

  • When?
  • How long before your [insert adverse employment action] was this comment or statement made? Where?
  • Anyone else present?
  • Exactly what was said?
  • Any documentation regarding this comment or statement?
  • This comment or statement was not made in connection with your [insert adverse employment action], correct?
  • Did you say anything in response? If yes, what?
  • Did anyone else say anything in response? If yes, who? What was said?
  • Did you ever complain about this? To whom? When? What did you say?

Did you ever hear anyone at [Employer] make any derogatory remarks about your [protected status]?

  • Who?
  • What was [his][her] position?
  • [He][She] did not have any managerial or supervisory authority over you, correct?
  • As far as you know, [he][she] did not play any role in your [insert adverse employment action], correct?
  • When was this remark made?
  • How long before your [insert adverse employment action] was this remark made?
  • Where?
  • Anyone else present?
  • Exactly what was said?
  • Any documentation regarding this remark?
  • This remark was not made in connection with your [insert adverse employment action], correct?
  • Did you say anything in response? If yes, what?
  • Did anyone else say anything in response? If yes, who? What was said?
  • Did you ever complain about this? To whom? When? What did you say?

Questions designed to bolster the “same actor” defense:

The following questions are an attempt to gather facts to prove that the person who made the purportedly discriminatory decision (e.g., demotion, suspension, transfer, termination) also did something positive for you (e.g., hire, promote). The basic theory underlying this defense is that a person who, for example, hired you, knowing your protected status, would not later fire you because of your protected status.

  • Who made the decision to [insert adverse employment action] you?
  • Who participated in the decision to [insert adverse employment action] you?
  • [Insert name of decision-maker] also made the decision to [insert positive employment action], correct?

Example:

Q. Who made the decision to terminate your employment?
A. Tony C.
Q. Did anyone else participate in the decision to terminate your employment?
A. Not that I know of.
Q. Tony C. hired you, correct?
A. Yes.
Q. You interviewed with Tony C. before he hired you, correct?
A. Yeah, I had to interview with him several times.
Q. And the interviews you had with Tony C. before he hired you, those interviews were in-person interviews, correct?
A. Yes.
Q. Is it accurate to say that Tony C. was aware that you were Asian before he hired you?
A. Yes.
Q. Do you know why Tony C. interviewed you several times before hiring you?
A. He was interviewing other people for the same position.
Q. Do you know who any of those people were?
A. Well, I don’t know all of them, but I know that he interviewed Sarah S. and Ellie S.
Q. What is Sarah S.’s ethnicity?
A. White.
Q. What is Ellie S.’s ethnicity?
A. White.
Q. And Tony C. hired you, an Asian, over two Caucasians, correct?
A. Yes.
Q. Thank you. I have no further questions.

Questions designed to bolster the “equal opportunity jerk” defense

The employer’s attorney may ask you questions designed to gather evidence to support the so-called “equal opportunity jerk” defense. This “defense” essentially requires the defendant to demonstrate that the decision-maker was an unfair “jerk” who terminated or demoted people without any justification, regardless of their protected status. Caution: Generally, defense counsel need only ask whether the decision-maker was fair or was a good supervisor and then sit back and wait for the plaintiff-employee to go on a rampage about how awful the supervisor behaved. This is a trap for the unwary that a knowledgeable employment attorney will discuss with you well ahead of your deposition. Consider the following example:

Example:

Q. You testified earlier that you believe that Sally Q. selected you for inclusion in the company’s reduction-in-force because of your age, 58, correct?
A. Yes.
Q. Would you say that Sally Q. was an equitable or fair supervisor?
A. No. I worked at the company for 13 years, I worked hard, and never had any disciplinary problems. I should never have been laid off.
Q. Was Sally Q. unfair to anyone else?
A. Yeah, she was unfair to everyone who wasn’t in her inner circle.
Q. In addition to you, to whom was Sally Q. unfair?
A. John A., Erica M., and Justin R.
Q. How was Sally Q. unfair to John A., Erica M., and Justin R.?
A. She laid John A. and Erica M. off along with me. Earlier, she fired Justin R. for no reason. Well, she said that it was because he was late to work but she never even disciplined her friend, Greg H., when he was late to work. That just isn’t fair.
Q. How old were John A., Erica M., and Justin R. at the time Sally Q. terminated their employment with the company?
A. John A. was 63, Erica M. in her twenties, and Justin R. was in his thirties.
Q. Who was in Sally Q.’s inner circle?
A. Paul P., Greg H., and Gwen J.
Q. How old were Paul P., Greg H., and Gwen J. at the time you were laid off?
A. Paul P. was in his forties, Greg H. was in his sixties, and Gwen J. was in her late thirties or early forties.
Q. How old is Sally Q.?
A. I’m not sure, but I know that she is older than me.

Questions regarding failure-to-promote discrimination claims

You believe that you were not promoted because of your [protected status], correct?

  • To what position do you believe that you should have been promoted?
  • Did you apply for that position?
  • When?
  • To whom?
  • Did that position have a list of qualifications?
  • Did you meet all of those qualifications?
  • The person that [Employer] selected for the promotion was the same [protected status] as you, correct?
  • Who was selected for that position?
  • Did that person meet all of the qualifications for the position?
  • What was that person’s [protected status]?