Do Employers Normally Have an “Edge” in Defending a Claim?

Copyright ComstockEmployers have a built-in advantage in defending against many claims. They do not have the burden of proving discrimination; it is the employee who has the “burden of proof.” Employers have the employment records. Employers are often the only ones who know of any exceptions they’ve made to their policies. Courts often allow employers to talk to every employee who has not sued them. Employers can present their evidence through witnesses who are managers, are used to speaking publicly, and are accustomed to respect.

Employees presenting claims against employers have to jump through a series of hoops. In a case that has to go before the EEOC, employees have to meet the time requirements for filing EEOC charges, even if the EEOC cannot assign someone to talk to them before their time is up. Employees can lose the right to bring suit on a type of discrimination if an EEOC official makes a mistake drafting the charge. Employees have to cooperate with the administrative process or their cases can be dismissed; employers can disregard the administrative process without losing their cases. Employees have to keep the EEOC informed of changes of address so that a request for further information or Notice of Right to Sue can reach them on time.

Employees have to file their lawsuits within 90 days after receiving their Notices of Right to Sue from the EEOC. In some parts of the country, courts have ruled that employees have less than 90 days because their time period started running at some point before they received the Notice of Right to Sue, even if the mail is delayed.

Employees have to think of the right questions to ask the company in order to get the evidence to win. Employees can lose their right to ask those questions if they do not start requesting information early enough in the case. Employee lawsuits have to survive employers’ “motions for summary judgment,” i.e., efforts to get their cases thrown out of court.

On top of that, employees can also lose cases because they make critical mistakes, like failing to complain internally to the employer about sexual harassment because of a false assumption that the employer “must know” about bad things happening, or by failing to make follow-up complaints, or by refusing to comply with reasonable requests by employers for more information because of a misplaced sense of dignity, or by refusing to accept and to work on employers’ suggestions for improving job performance, or by losing their tempers on the job or when they are being questioned under oath, and so on.