Lessons From Appellate Practice: Inclusive Decision-making May Increase Litigation Risks
Discrimination claims turn on the motive for the employment decision at issue. Accordingly, cases often focus on the decision-maker. What comments has he made that might suggest prohibited bias? Whom else has she made decisions about under similar circumstances? What did she know and when did she know it? When did he make the decision, and what evidence supports his explanation? Discovery, motion practice, and trial may indeed consist of much wrangling about the decision―who made it and when―with plaintiffs’ lawyers trying to expand the field, and defense lawyers trying to build walls around a single decision-maker who is untainted by bias. The plaintiff’s lawyer wants more targets, more sets of facts from which adverse inferences might be drawn. The defense lawyer wants fewer targets. Quick Hits Discrimination claims often hinge on the motive behind employment decisions, leading to extensive scrutiny of the decision-maker’s comments, knowledge, and timing , with plaintiffs’ lawyers se...