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The Basic Steps of Employment Litigation

By Kevin V. Parsons

Most employers believe, understandably, that if they treat their employees fairly, they will be able to avoid expensive and time consuming litigation. Unfortunately, what seems fair to an employer is not always the same as what the law requires. In fact, employees can either sue employers or file charges with an administrative agency like the EEOC, even if the employer has treated them fairly. Commonly, employers find themselves in litigation brought by employees they thought were treated fairly. When an employer is faced with this common reality, it becomes necessary to understand what may be involved in litigation of employment disputes in order to prepare as well as possible to meet the challenges posed by employment litigation. More specifically, employers need to understand the basic stages of litigation and the unique challenges they may face, in order to avoid litigation altogether if possible or minimize the costs if not. The following article discusses a common sequence of events of a typical employment dispute that culminates in litigation.

Civil litigation is complex and expensive. It is best avoided by employers when they are informed and well advised by legal counsel. Employers that are not well informed and do not seek legal counsel to avoid litigation do so at great risk to the financial and operational well-being of their businesses.


Typically, employment litigation begins in one or several regulatory agencies like the Equal Employment Opportunity Commission (EEOC), the Employment Security Commission (ESC), or the Department of Labor (DOL). Nearly all employment discrimination statutes require employees to file charges in one or more of these agencies before they can file a lawsuit. Employees also commonly file claims with the ESC seeking unemployment benefits before filing lawsuits. Typically, while claims are pending before these agencies, either investigators or lawyers are seeking information to help build a legal case for an employee. Employers, either because they lack knowledge, understanding, or both, are prone to make unintentional mistakes that can later prove harmful.

Additionally, in the EEOC or the DOL, important decisions are pressed on employers such as whether or not to mediate, how much or how little information should be properly provided to the agency, whether or not the claim is legally proper before the agency, and how to respond in a position statement provided to the agency. Each of these decisions can be very important with significant implications for future litigation. If, for example, the EEOC thinks an employer’s response is evasive or incomplete, it may seek more information from the employer which is preferably not disclosed. What happens in these agencies is important because if the agency determines a legal violation occurred, it commonly results in a lawsuit brought by the agency or private counsel or sometimes both. Conversely, if the agency finds no legal violation took place, this often deters the filing of a lawsuit by private counsel on an employee’s behalf.


If an employee or the EEOC elect to file a lawsuit, the first step in the process is the filing of a “Complaint.” Complaints must be filed within specified time limits, often as little as 90 days after the employee receives a right to sue letter. Once a Complaint is filed, the employee must serve it on the employer in specified ways and within a certain period of time. An employer properly served must then evaluate how to respond to a Complaint. There are generally two options: (1) An employer can file a motion with the court asking for dismissal of the Complaint if the Complaint is defective in its allegations or if the court lacks jurisdiction; or (2) the employer can file an “Answer.” If the employer elects to answer a Complaint, then the case will proceed to “discovery.”


In discovery, both parties are entitled to serve written questions (known as interrogatories) on the opposing parties. Interrogatories are usually designed to find out what the other side knows, or claims about their case. The parties can also serve their opponents with discovery requests seeking all the documents relevant to the case. Additionally, each party is allowed to question a certain number of people under oath in what is known as a deposition. Each phase of this discovery period involves critical decisions about what each party needs to know in order to prove a case or disprove important factual disputes.


Once discovery is complete, most courts require the parties to engage in mandatory mediation. In this step an impartial mediator seeks to persuade the parties to voluntarily settle their dispute. Mediation is an important stage of a case because it often involves the first time the parties disclose to each other the strengths or weaknesses of their legal cases. Good mediators usually focus the participants on the weaknesses of their case in order to urge them to compromise towards a settlement. If mediation does not result in a settlement, then the next step in the process of litigation is usually what is known as summary judgment.


Summary judgment is a procedural stage of a civil case in which one or both parties seek to persuade the judge that either some aspect of the case or the entire case does not warrant a trial. Employers usually seek to persuade the judge that the facts about the case are not materially disputed by the employee, and that based on those settled facts the employer did not violate the law. Consequently, the employee’s case should be dismissed without trial. If the employer succeeds at summary judgment, the case is either wholly or partially dismissed. If the case is entirely dismissed, the employee has a right to file an appeal with a higher court. If summary judgment fails, then the case will proceed to trial.


Trial preparation is critical. Once a case moves to trial, the parties must begin to prepare their best factual and legal case for presentation to either a jury, or in some cases a judge. Typically, in employment litigation, juries evaluate the facts and judges make legal decisions based upon the facts found by the jury.

Trial preparation is unique to each case. Typically, it must be tailored to the allegations made by the employee, the defenses raised by the employer, the facts developed in discovery and the applicable legal standards. Trial preparation must also include consideration of any possible issues that could be appealable.

A trial almost always begins with arguments by counsel about evidentiary issues. At this stage, the judge will decide whether certain kinds of evidence may be legally presented to a jury as a matter of law. Also at this stage, the judge can consider such matters as the order of witness presentation, scheduling concerns presented by the parties, how the court will allow the parties to go about selecting a jury and other administrative matters.

After the pretrial motions are argued, the case generally moves into selecting a jury. In this step the lawyers and/or the judge question jurors about their potential biases, any impediments they have to serving as a juror, or other issues that could prove to be prejudicial to a party to the dispute. Once a jury is selected, it is sworn in and the judge will direct the plaintiff (usually the employee) to present his or her case.

At the conclusion of the plaintiff’s case, the defendant (usually the employer) can request that the court enter judgment as a matter of law in its favor based on the insufficiency of the evidence presented. If the judge grants the defendant’s motion, the case is dismissed with judgment entered for the defendant with a right to of appeal for the plaintiff. If the judge denies this motion, the defendant will usually proceed to present testimony and other evidence in its defense. Once the defense rests, there is again an opportunity for both plaintiff and defendant to ask the judge to enter judgment as a matter of law. If the court grants that motion, the party that loses has a right of appeal. If the judge denies that motion, the court will review proposed jury instructions from the parties, decide which instructions are proper and then instruct the jury on the applicable legal standards. The court will then direct the jury to deliberate and return a verdict.

Once a jury completes its deliberations, and renders its verdict, the losing party can request a new trial. If granted, the court schedules a new trial. If denied, the losing party has a right to appeal.


The processes involved in civil litigation are complex and demanding on employers. However, experience teaches that employers well informed and advised about the processes of litigation have a greater likelihood of either avoiding litigation altogether, bring litigation to a cost-effective and expeditious conclusion or prevailing if the entire process becomes necessary. Conversely employers that are uninformed and that fail to develop effective strategies to meet the demands of civil litigation are more likely to experience prolonged, costly and unfavorable outcomes in civil litigation.