Written by attorney Ann A. Hull

Why Employees Have The Advantage When Suing An Employer For Discrimination

If you are a worker who can prove you were subjected to discrimination, you have a huge advantage in a lawsuit against your employer. Even though you may be fighting a major corporation, with a major law firm backing them, you have many advantages:

1.) There are statutes in California that require an employer who loses an employment lawsuit to pay the Plaintiff's lawyer fees and costs. This can add up to significant money.

2.) Unlike the employer or supervisor who discriminates, an employee who has been subjected to discrimination or harassment can look the jury in their eyes and know that you have truth on your side.

3.) You have the ability to go to the media. Local newspapers, journalists, and bloggers are always willing to to stories about companies that unlawfully treat their employees.

4.) Juries are usually comprised of employees or ex-employees. In general, jurors don't like employers who treat their workers unfairly.

5.) If the employer loses their case, the law firm that is representing the employer may be fired. If the employer is a corporation, the loss of such a client can mean the loss of many jobs.

Employees who sue their employers should be prepared for a long battle that can last for years. While many lawsuits are settled at mediation, prior to an actual trial, it has been my experience that cases settled prior to mediation are usually settled for a small fraction of what they would be worth if the case was heard by a jury.

Even if a case goes to trial, and the Plaintiff wins, the employer may file an "appeal." The same thing can happen if the Plaintiff loses at trial. Therefore, patience is an important key to obtaining proper compensation.

It has been my experience that the attorneys who work for employers usually try to wear the Plaintiffs down with psychological warfare that has nothing to do with the merits of the case. Usually the employer's attorneys will try to embarrass the Plaintiff's attorney in front of the Plaintiff. They will do everything to make the Plaintiff lose confidence in their attorney with the end goal of either trying to get the Plaintiff to dismiss his or her case, or to fire the Plaintiff's lawyer. They may also try to "starve" the Plaintiff by providing bad job references so that he or she can not get a job. Other employers may strike back by (unlawfully) canceling health insurance, or by denying a former employee's claim for unemployment.

The attorneys who work for employers know that their best defense is to get the Plaintiff and his or her attorney to start fighting. Usually this occurs when cases are delayed and Plaintiffs are without work. Unhappy clients with no jobs often make unnecessary work for their attorneys, and create unwelcome distractions for paralegals and support staff.

Every year myself and my colleagues in the California Employment Lawyers Association ("C.E.L.A.") talk about factors we take into consideration when deciding to fire our own clients. Attorneys do not like it when their clients start making requests (usually for money or other favors) that require the attorney to take time out of his or her busy day to call to the State Bar's ethic's line. Attorney's do not like it when clients want detailed explanations about complex legal theories that took a year or to in law school to understand. Other factors that prompt attorneys to file a "motion to withdraw as counsel" include repeatedly disturbing the attorneys or their staff on weekends, holidays, and after business hours; demanding quantities of documents that will have to be copied or scanned by the staff; and demanding other tasks that take the attorney and their staff away from doing their work.

Defense attorneys know what makes Plaintiffs angry at their own attorneys, and they take advantage of it. Noticing depositions, then canceling them at last minute makes Plaintiffs angry at their lawyers. Writing letters that includes language that attempts to make the attorney or Plaintiff look bad, can anger a Plaintiff. Delaying important court dates like trials or mediations, makes Plaintiffs angry at their attorneys. Unfortunately, most Plaintiffs do not understand that their attorney can rarely stop a defense attorney from changing a trial date, or delaying a deposition.

If the lawyer fires the client or the client fires the lawyer, there is a good change the client will not find another lawyer. And, if they do find another lawyer, the second lawyer will have less monetary incentive than the first lawyer, and the second lawyer will not be as knowledgable of many details. Therefore, the second attorney likely will not be as dangerous when it comes to task such as cross examination.

A Plaintiff in an employment case who is aware of the psychological methods that defense attorneys use, who has patience, and who maintains trust in their attorney, has a big advantage in a discrimination case. As long as the Plaintiff has evidence of the employer's wrong-doing, and does not allow himself or herself to become distracted by the defendants' psychological tactics, the Plaintiff is the one with the advantage.

Additional resources provided by the author

California Employment Lawyers Association. National Employment Lawyers Association. The Disgruntled Employee by Ann A. Hull. Valley Lawyer. November 2010.

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