What are the two main areas of inquiry employment lawyers should cover during depositions in an employment discrimination lawsuit?

In connection with an employment discrimination lawsuit, the lawyers for both sides – the plaintiff-employee who filed suit, and the defendant-employer who was sued – will take depositions. A deposition is a formal interview in which the lawyer for one party questions the other party (or a representative of the other party, or a witness) under oath. Counsel for the parties should focus on two main areas of inquiry during the employment discrimination depositions:

First, counsel will want to determine whether there is any “direct evidence” that the defendant discriminated against the plaintiff. Although direct evidence of discrimination is rare in employment discrimination cases, it is obviously extremely beneficial to the plaintiff because it can be used to defeat any motion for summary adjudication (that is, a formal request by the defendant to enter judgment against the plaintiff without a trial), and because it can conclusively resolve the issue of liability. Although “direct evidence” of discrimination has not been defined with any clarity in either the statutory law (the law “on the books”) or the case law (judge-made law), the Supreme Court has seemed to suggest that it is, at a minimum, discriminatory statements by decision-makers and related to the decisional process itself. For example, the following would constitute “direct evidence” of discrimination: “We don’t hire the handicapped.”; “We don’t need any more blacks in this job.”; “We could only promote one person and everyone knows that our gals aren’t all that interested in promotions, so we gave it to him.”

Second, counsel for both parties will want to gather evidence necessary to establish and/or rebut the legal elements required to prevail in an employment discrimination case:

  • The plaintiff must establish a plain-on-its-face case of discrimination. Essentially, this means establishing that (i) he belongs to a protected class because of his race, color, national origin, gender, religion, age, disability, etc., and (ii) he suffered an adverse employment action (e.g., failure to hire, failure to promote, demotion, termination, etc.) because of his protected status. For example, in a failure-to-hire race discrimination case, the plaintiff would have to establish, as a preliminary matter: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of plaintiff’s qualifications.
  • The defendant-employer must then articulate a legitimate, nondiscriminatory reason for the adverse employment action; and
  • The plaintiff must then prove the employer’s articulated legitimate, nondiscriminatory reason for the adverse employment action merely a pretext for discrimination.