Employment lawsuit deposition questions: prerequisites to suit

When you file a lawsuit alleging wrongful employment practices, the attorney for the defendant-employer (the employer you have sued) will conduct a thorough investigation into your claims. This investigation will include your deposition – a formal interview with the defendant-employer’s attorney, in which you will answer questions under oath. One area of inquiry at your deposition will be whether you complied with any “prerequisites to suit.”

What are “prerequisites to suit”?

In order to proceed on a lawsuit alleging discrimination, you must first file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or with a state Fair Employment Practices (FEP) agency. You must obtain a right-to-sue letter from the EEOC or the FEP before you can file a discrimination lawsuit in court. The defendant-employer’s lawyer will question you about whether you complied with these administrative requirements (i.e., “prerequisites to suit”).

In addition, in an effort to prevent employees from going to court, many employers have adopted comprehensive internal grievance policies, which purport to require employees to exhaust the remedies available under these policies before filing a civil complaint in court. With some narrow exceptions, you are not legally required to exhaust these internal remedies, but you can expect to be questioned about them at your deposition.

Administrative (EEOC and FEP) prerequisites

The employer’s lawyer will explore with you all documents submitted to the Equal Employment Opportunity Commission or state agency, including the charge of discrimination, the written questionnaire, notes taken during your initial intake at the EEOC, and any statements attributable to you in the EEOC file. Questions you may be asked include:

  • Did you file a charge with the Equal Employment Opportunity Commission?
  • Is this the charge you filed?
  • It is notarized. You swore the information in the charge was correct?
  • Who prepared the charge?
  • Did your attorney prepare the charge? Assist you in preparing the charge?
  • The complaint you filed with the court alleges [e.g., race discrimination], but there is no mention of [e.g., race discrimination] in the charge. Why?
  • When did you determine that you had been discriminated against on the basis of [e.g., race]?
  • How did you come to that determination?
  • Why didn’t you file the charge [within applicable time period]?
  • You also filled out a questionnaire at the EEOC? Is this the questionnaire that you filled out?
  • You signed the questionnaire, correct?
  • You attempted to be as truthful and complete as possible in providing this information to the EEOC?
  • You knew the EEOC would be using the information you provided in its investigation?
  • Here are some notes that the EEOC investigator prepared when you first met with the investigator, and some notes taken based upon phone calls the EEOC investigator had with you. Please take a few minutes to review those notes. I will be asking you some questions about some of the information in those notes.
  • Here is an interview of ____ that the EEOC investigator conducted. Please review that interview. I will be asking you some questions about some of the information _____ provided to the EEOC.

Internal employer policies, procedures, remedies

  • Are you aware of any policies or procedures for filing a complaint with the employer?
  • You received a copy of the employee handbook. Did you read it?
  • Does the employee handbook contain procedures for making a complaint with the employer?
  • You were aware that if you had a complaint of harassment, you could contact [e.g., the company’s human resources department, your supervisor, etc.]?
  • Does the handbook provide alternatives to complaining to the person who is victimizing you?
  • Did you contact the human resources department after you were harassed by Mr. Doe?
  • If not, why not?
    • Were you afraid for your job?
    • Were you concerned you would be fired after you complained?
  • If yes, when?
    • Who did you speak to in the human resources department?
    • What did you tell him?
    • Did you take any notes of what you told him?
    • What did Mr. Jones, in the human resources department, tell you?
    • Did you take any notes of what he told you?
    • What did he tell you he was going to do about your complaint?
    • Do you know how the employer investigates these complaints?
    • Do you know what happens to the parties involved?
    • What does the policy provide? Progressive discipline?
    • Did you tell Mr. Jones all the facts and circumstances concerning your complaint?
    • Did he ask you to identify any persons who may have witnessed the harassment?
    • Did you provide him with the names of those witnesses?
    • What names did you give him? [Or, if not, why not?]
    • Did Mr. Jones tell you that he was going to contact those witnesses?
    • Did you speak to any of those witnesses and learn whether Mr. Jones interviewed them?
    • What did they tell you?
    • Did Mr. Jones contact you after he completed his investigation of your harassment complaint?
    • When did that occur?
    • How soon after you brought the complaint to him did he contact you about the results of his investigation?
    • What did he tell you about the results of his investigation?
    • Did he tell you what action had been taken to remedy the situation?
    • What did he tell you?
    • Were you satisfied with the action the company took after you brought the harassment complaint to the human resources department?
    • If not, why not?
  • Do you know other people who have filed complaints?
  • What happened to them?
  • Do you know if anyone has been fired after filing a complaint?