Employment discrimination cases generally differ from other kinds of cases. The reason for this is because employers, especially large employers, such as United Airlines, have nearly unlimited resources, while employees generally have very limited resources to pay for expensive litigation. In addition, employers do not take allegations of discrimination lightly; thus, it may be desirable for an employer to pay hundreds of thousands of dollars in costs and attorney’s fees to fight a discrimination case in order to be “vindicated” and absolved of liability. Employees who feel they have been discriminated against often desire vindication as well.
This unique attribute makes most employment discrimination cases into David vs. Goliath-like battles. Because of the economic realities of most employment cases, some attorneys working for employers have adopted a strategy of overwhelming courts and opposing counsel with an astonishing amount of paperwork which has the effect of significantly driving up the costs of litigation for the employee.
Nazir vs. United Airlines is an excellent example of this. The court starts its opinion with the following:
…Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well?funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the fact-finder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.
In Nazir, the trial court had granted judgment for the employer prior to trial, after being barraged with 5,415 pages (no, I am not kidding) of material. The case was appealed, and the appellate court reversed the trial court’s decision. The trial court judge, after reading the first several pages of the employer’s motion, had already made up his mind and failed to read on through the mountain of documentation before him to discover the possibility that the employee may have had a meritorious claim.
One of several perplexing examples of what happened comes from the employers’ objections to evidence submitted by the employee at a deposition. The employee stated that he had been called names at work such as “sand nigger, sand flea, rag head, and camel jockey,” (pardon the inappropriate language). The employer objected to this evidence as “hearsay.” The definition of hearsay is an “out of court statement offered to prove the truth of the matter asserted.” It takes very little reflection to realize that Mr. Nazir was not offering these out of court statements into evidence to prove that he was, in fact, all the aforementioned names.
All in all, it took approximately 4 years, several thousand dollars in litigation expenses, and countless hours of work for Mr. Nazir just to be able to take the case to a trial.
The appellate court said this case was a “poster child” for the trend of judges denying trails to employees in employment discrimination cases. The court’s decision was certainly a victory for Mr. Nazir, but was it a victory for all employees? The court used sweeping language suggesting that it would rarely ever be appropriate for a judge to enter judgment in favor of the employer before a trial. However, my guess is that judges will continue denying trials to employees despite the ruling in Nazir vs. United Airlines.
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