ohio employment law

Things not to say to an employment lawyer

We’re a busy employment law firm.  We get tons of calls from potential clients.  Their claims run the gamut of employment law – discrimination to unpaid wages, severance and retaliation.  We try to help as many people as we can.  But there’s only so much that can be done.  If you are thinking about calling an employment lawyer, here are some things you might not want to say.

1.       This case is newsworthy.  Really?  OK, quickly, name one employment law case in the news right now.  How many can you recall ever being   in the news?  Chances are your case is not newsworthy either.  That “bad publicity” you think that your employer is afraid of, is not nearly as big of a concern as you think.  Very few cases make the news. 

2.       I am entitled to a significant payout.  More likely than not, you are entitled to nothing.  You are almost certainly an employee at will.  The only way you are entitled to compensation is if you have an agreement (e.g. contract, collective bargaining agreement, company policy, etc.).  Otherwise, you have to fight for a payout (let alone a “significant” payout).

3.       The company has tons of money.  Your company did not get “tons of money” by handing it out.  Just because your company can afford a generous settlement, does not mean that it will pay a generous settlement.  The richest companies are often the stingiest.

4.       Why did I get fired?  That’s for you to figure out.  To be sure, the role of employment lawyer includes doing an investigation.  But if you don’t have a rough theory of your case when you first call an employment lawyer, put down the phone and think things through.  To come up with a “theory of the case,” you need to think about your narrative – what happened to you at work, and why you think a lawyer should be helping you out.  Were you fired because of your age, disability, sexual orientation, medical leave?  Were you paid for all of your overtime?  If you don’t have a theory lined up before you call, you are not ready.

5.       It’s a long story.  No its not.  Maybe your whole story is a long one, but when you call an employment lawyer, cut to the chase.  “I was treated unfairly because … ,” “I was fired because … ,”  “I am entitled to compensation because … .”  These are not long stories.  Yes, of course, we will have to fill in the details, and details matter a lot, but when you first call – get right to it.  The rest can be filled in from there.


How do Employment Discrimination Lawsuits Work?

This post is probably more for the lawyers out there who are curious about employment discrimination lawsuits, but below is a (relatively) simple breakdown of how these cases are analyzed.  Most employment discrimination cases are analyzed by what is called a McDonnell Douglas burden shifting framework. Under this burden shifting framework, there are 3 burdens, which shift between Plaintiff/Employee) and Defendant/Employer).First Burden: Plaintiff/Employee has a burden of production with respect to a prima facie case of discrimination.

  1. Burden of Production: This means you have to “show,” but not prove.
  2. “Prima Facie Case of Discrimination” “Prima facie” is Latin for first impression. So you have to show (burden of production) a first impression case (prima facie) of discrimination. To do this, Courts require Plaintiff/Employee to show (not prove) four elements:
    • Plaintiff/Employee belongs to a “protected class”
      • “Protected class” is a characteristic of a person which cannot be targeted for discrimination. This includes: race, gender, religion, national origin, age, pregnancy, disability, sexual orientation, and more.
    • Plaintiff/Employee suffered an “adverse employment action”
      • “Adverse employment action” means something bad happening at work. This includes: termination of employment, harassment (but it has to be pretty bad), demotion, suspension, etc.
    • Plaintiff/Employee is “qualified for the position”
      • Typically this is only relevant for failure to hire cases, as opposed to “wrongful termination” cases. If Plaintiff/Employee worked at a job and was subsequently terminated, they are almost always “qualified for the position.”
    • Adverse employment action occurred under circumstances “giving rise to an inference of discrimination”
      • “Giving rise to an inference of discrimination” means something which makes it plausible that the action taken against the employee was related to his or her protected class. Evidence can include being replaced by a person outside the protected class, timing, comments by supervisors and/or decision-makers.

If Plaintiff can meet this burden of production, the burden then shifts to Employer/Defendant Second Burden: Defendant/Employer has a burden of production to produce a legitimate, non-discriminatory justification for the adverse employment action.

  1. Legitimate, non-discriminatory justification. This means the employer has an obligation to come up with a reason for the termination, demotion, etc., other than the protected class.

Third/Final Burden: Plaintiff/Employee has a burden of proof by a preponderance of the evidence that Defendant/Employer’s stated reason is pretext for discrimination.

  1. Preponderance of the evidence. This means more likely than not. 51%.
  2. Pretext. This means that the reason put forth by Defendant/Employer is bs, and the real reason for the adverse employment action was discrimination. This is where discrimination cases are won and lost.

At the end of the day, the burden is on Plaintiff/Employee to show that, irrespective of the reason, discrimination was the real reason (or at least a big part of the real reason) for Defendant/Employer’s decision to terminate the employee. If you have any questions, feel free to contact us. We welcome calls from potential clients as well as fellow attorneys in need of guidance.