An Update on Employment Discrimination and Harassment Claims
Five years ago, I wrote about my experience in employment discrimination and harassment claims. Employment law is a fascinating field because it involves human interactions, personal insecurities, and class conflict. While the law is heavily favors one side, societal opinion heavily favors the other. I thought it was time to update the post with more thoughts on employment discrimination.
The U.S. government at the end of 2025 is certainly more conservative than it was in 2020. And while I believe the federal EEOC is less likely to champion certain discrimination claims than it may have been in the past, I do not think that substantially changes the claims a plaintiff may assert today. This is because even meritorious claims in 2020 likely received a “right to sue” letter, which is no more generous than what employees represented by counsel may receive today under similar facts.
Theoretically, a strong job market should make employers more competitive against each other, and so offer stronger wages to attract talent. But in practice, I see the same types of compensation being offered at termination, despite any differences between the job market today and during the covid pandemic. It could be that high competition forces employers to cut costs where they can, and the wages paid to ex-employees are a less visible type of cost that may seem easy to cut.
The employment dispute resolution process can be very slow, so it may be hard for trends to emerge immediately. Since a trial in an employment dispute may come five years after a termination, it can be difficult to link an older news event or economic shift to its outcome. I am wary about ascribing today’s shifts to contemporary outcomes for employees, despite some recent conservative rulings by the U.S. Supreme Court.
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I have represented both employers and employees in disputes alleging discrimination and harassment. These cases are challenging for numerous reasons: the parties often have very different understandings of the facts, damages are difficult to estimate, and the subject matter requires sensitivity. But, as with any case, hard work and a detailed understanding of the facts and law helps clients protect their legal position and increases the likelihood of a just result. Below, I share observations from my work in this field.
Why should you continue to read this post about employment discrimination claims?
You may have a discrimination claim and are curious about the process
You’re an employer who is unsure how attorneys handle harassment allegations
You have a blog about litigation, too, and you want some inspiration
Image credit "To save trouble no Irish need apply." Employment notice, New York Post, 1828.
Common Elements in Discrimination and Harassment Claims
Employment disputes, like commercial disputes, rarely proceed to trial. Trials are expensive; they usually make sense only if the amount at stake is greater than the estimated cost of the trial. As a result, some employment disputes end in a settlement. In many cases, however, they end either when a court dismisses the employee’s allegations as legally insufficient or when an employer fails to properly respond to the allegations.
Just because employment disputes rarely proceed to trial, doesn’t mean they won’t be costly. Because discrimination and harassment claims usually depend on detailed allegations, plaintiffs rarely succeed without lengthy discovery to verify the facts or a settlement against defendants that defend themselves in court.
When determining whether to settle, it can be difficult for employees and employers to calculate an appropriate amount for the employer to pay. Unlike a contract dispute, where an agreement can set forth an amount due, there is no natural number that can compensate an employee for discrimination. Some plaintiffs get thousands of dollars, and others much more. This is because judges and juries have discretion to determine a dollar amount that compensates the plaintiff for his claims. And since one common element of employment dispute damages is the pay the employee would have earned until he got a new job, it is difficult to predict when an unemployed person will become employed again.
But even though estimating damages is difficult, few plaintiffs receive millions of dollars in damages. And without damages in that range, many parties do not feel the high cost of trial is worth it.
More Than Money Is at Stake
Litigants in employment disputes often do not make decisions solely based on the amount of money at stake. Nearly all commercial disputes provoke emotional reactions from participants. People get angry when business partners disappoint them or when they feel deceived. Discrimination and harassment are intensely personal experiences that traumatize survivors. And allegations of discrimination and harassment are so serious that many accused people believe they need to clear their or their company’s names to maintain their dignity. As a result, employment disputes often concern matters of principle in addition to simply dollars and cents. Litigants also weigh the role of publicity in their employment disputes, whether it is to shed light on discriminatory practices or to avoid the attention that comes from a lawsuit.
I feel like an imperfect advocate in discrimination and harassment cases. As a straight, white, cisgender male, I may be perceived as insensitive to plaintiffs’ claims when I represent defendants, and I may not appropriately articulate plaintiffs’ claims when I represent them. But ensuring safe and fair workplaces is everyone’s responsibility, especially for privileged people like me. So I do my best to treat claims with the seriousness they deserve.
As a result, I have articulated claims of discrimination by women and people of color, usually to attorneys who are not cisgender straight white men. And I have listened to other attorneys set forth allegations of discrimination and harassment by my clients to me.
The interactions that felt best were the ones where the claims were treated seriously, no one used inflammatory language. The parties shared the facts and law that were helpful for their side. Each side was candid about where their clients could negotiate and where they needed to stay firm.
The Applicable Law Can Be Complicated
In the United States, multiple sets of laws govern discrimination and harassment. In addition to federal statutes like Title VII of the Civil Rights Act of 1964, states and cities have their own civil rights laws that prohibit discrimination and harassment. Moreover, discrimination and harassment could possibly result in common law tort liability.
Applying these laws to a plaintiff’s allegations can be hard work, especially because the technical rules are far less interesting to clients and third parties than the allegations of misconduct. But a plaintiff’s failure to apply the rules correctly could result in the dismissal of their case. And a close study of the applicable case law could reveal to the defendant which affirmative defenses it could use to avoid liability, and which are precluded by law.
The complexity in the law means that litigants often have to make calculated risks about proceeding with a lawsuit. Plaintiffs in discrimination and harassment claims often have fewer financial resources than defendants. Many, therefore, use contingency lawyers whose only fees are a portion of the amount they recover from the employer. This means that many employees may not be afraid to litigate a case, even if it is unclear if they will prevail under the law, because they do not need to pay additional hourly fees to do so. By contrast, some employers may want to avoid litigation to save on attorneys’ fees, even if they could possibly prevail, unless they have applicable insurance coverage or arrangements with lawyers that do not charge by the hour.