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Profiling based on ethnicity and employer practices

San Diego, CA |

Former employer uses either Japanese or Chinese women as secretary for the executives. How about the argument that these women are brought up to serve and protect their superiors (father, husband, boss) - in this case one of them is being presented as a witness in a hearing (alternate dispute resolution) and she is the secretary and therefore is not competent to testify especially her role is secretary and the case is against her boos who hired her. In a prior review, this Secretary just denied everything.

What other reasons can be presented to preclude her as a witness?

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Filed under: Employment Arbitration
Attorney answers 4


Your question is difficult to understand. It seems you wish to preclude a witness because she is Japanese or Chinese and a secretary. None of those are legitimate bases for exclusion of a witness. Excluding a witness from a trial or arbitration is not an easy thing to achieve. Judges and arbitrators tend to allow evidence if it is relevant, and the party who opposes the witness can use effective cross-examination and other arguments to reduce the effectiveness of the testimony.

Focus more on how to impeach the witness and less on excluding the witness.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


Competency to testify has to do with a person's ability to know the difference between truth and falsehood, and is not applicable to the circumstance you describe. I think you are referencing particular cultural values; those values would not provide a basis for preventing the testimony of a witness, although they might reasonably be the subject of cross-examination.

Not legal advice as I don't practice law in California. If you need legal advice, please consult a lawyer who holds California licensure.


Their ethnicities have nothing to do with anything, and you hurt your own credibility by even bringing it up.

As Mr. Pedersen noted, you can try to attack their credibility, but you can't prevent them from testifying on the bases that you've described.

Craig T. Byrnes

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.


I agree with Messrs. Pedersen, Byrnes and Taylor. You can try to attack the credibility of any witness by asking questions that reveal, or may reveal, a bias. It may be persuasive to a judge or jury to show that a witness has incentive to skew testimony to keep his or her job. However, if you try to discredit an entire racial or cultural group, and all women, based on your own stereotypical beliefs, you will most likely end up offending someone whose opinion matters (judge or member of the jury), and may end up shooting yourself in the foot by revealing that you do not have facts upon which you can rely.

Focus on the facts. Focus on the evidence to prove the facts you want the decision maker to believe.

Your question today and your previous question(s) indicate you should not be trying to represent yourself at the upcoming proceeding. If you tried but could not find an attorney, there are several possibilities:

-- you are not looking in the right place for the right kind of attorney;
-- your case does not have as much value as you think; or
-- you are not presenting your case in a way that makes sense to the attorneys.

Employment attorneys want certain information right up front: the name of the defendant, the name of the employee; if the employee was fired (or denied reasonable accommodation, or laid off, or whatever the issue is, in five words or less); the date this happened; the reason the employer gave for whatever happened; how long the employee worked for the defendant; what job the employee did; how much the employee made; and any deadline.

If for whatever reason you are proceeding without representation, do yourself a favor and hire an attorney to help you understand the rules of evidence and how to present a case. Although this will not be a substitute for representation, it may help point you in the right direction – and the direction you are going in now seems destined to fail you.

For this type of assistance, you can expect to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more. You should expect to need at least three hours for this kind of consultation though five or six would be far more effective.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best.

Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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