Experienced employment lawyer identifies common issues covered in depositions in an employment retaliation case

To prevail in an employment lawsuit based on a claim of retaliation, you must prove that (1) you engaged in protected activity (e.g., complained about discrimination) and (2) because of that protected activity, you were subjected to an adverse employment action (e.g., a transfer, demotion, termination). In its defense, your employer may introduce evidence of a legitimate, non-retaliatory reason for the challenged employment decision. A key issue in retaliation cases will be what the employer knew about the protected activity, and when it came to have this knowledge; an employer cannot retaliate for protected activity it knows nothing about.

A deposition is a formal procedure, in which the employment lawyer for one party questions the other party under oath. At the defendant-employer’s deposition, your employment lawyer will question the decision-maker responsible for the adverse employment action. Your employment lawyer will focus his or her questions on two main topics:

  1. Questions designed to show knowledge on the part of the decision-maker: At the time you made the decision to transfer [employee] to another branch, you were aware that she had complained about sexual harassment, correct?
  2. Questions designed to show that the decision-making process was infected by those with knowledge of your protected activity: If the decision-maker claims to have been unaware of your protected activity, then your employment lawyer will ask questions like: You made the decision to transfer [employee], correct? Who else played a role in the decision-making process? What factors did you consider in making your decision? From whom did you learn about each of those factors?

At your deposition, the employer’s attorney will focus his or her questions on the following three topics:

  1. Questions about whether you, in fact, engaged in “protected” activity: You never complained about the [harassment/discrimination], correct? If you did complain, you might be asked: To whom did you complain? When did you complain? Was anyone else present when you complained? Did you take notes? Did the person to whom you complained take notes? Do you have any contemporaneous written records of your complaint (e.g., a calendar entry; a diary)? Did you tell anyone else about your complaint at that time?
  2. Questions designed to show lack of knowledge on the part of the decision-maker: Do you have any reason to believe that the decision-maker was aware that you complained about sexual harassment? You never told the decision-maker that that you had complained about sexual harassment, correct? No one ever told you that the decision-maker was aware that you had complained of sexual harassment, correct?
  3. Questions designed to show that you were not subjected to an adverse employment action: You believe that your employer retaliated against you by transferring you from department A to department B, correct? Aside from transferring you, do you believe your employer retaliated against you in any other way? As a result of your transfer, your hourly wage stayed the same, correct? As a result of your transfer, your benefits stayed the same, correct? As a result of your transfer, your hours and days of work stayed the same, correct?