How to Win an Employment Lawsuit

© 2001 Door & Access Systems
Publish Date: Summer 2001
Author: Phillip M. Schreiber
Page 46

Legal Tips
How to Win an Employment Lawsuit

Phillip M. Schreiber

(This is the third and final episode in our series on How to Fire an Employee. If you missed the first two parts, see our Winter 2000 and Spring 2001 issues.)

Did You Have a Good Reason?

Jurors often have a preconceived notion that an employer needs a good reason to discharge an employee. Consequently, employers who can demonstrate "just cause" for their actions significantly improve their chances of successfully defending a lawsuit before a jury.

Before taking action against an employee, ask yourself the following questions:

  1. Was the employee adequately forewarned of the possible disciplinary consequences of his or her conduct
  2. Was your rule or managerial order (which the employee violated) reasonably related to the orderly, efficient, and safe operation of the business?
  3. Did you conduct a thorough investigation before discharging the employee? This usually requires giving the employee an opportunity to present his or her side of the story, to confront and question the accuser, and to have the employer actively search out witnesses.
  4. Was your investigation conducted fairly and objectively?
  5. Did the investigation produce substantial evidence or proof of guilt?
  6. Were your rules, orders, and penalties applied promptly, evenhandedly, and without discrimination?
  7. Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's work record?

If you had too many "no" answers to the above questions, you may be on shaky ground if your disciplinary decision is challenged in the courts, before the U.S. Equal Employment Opportunity Commission, or at other government enforcement agencies. However, if "yes" answers are consistently obtained, you generally can implement your decision knowing that you will have a reasonably good chance of successfully defending your actions.

Proving Your Case

You must be able to demonstrate to a jury that you provided the employee with due process. This is done most easily through good documentation. From a jury perspective, inadequate records showing due process are the equivalent of providing no due process at all.

Good documentation has the following characteristics:

  • It is made when the event occurred or shortly thereafter (as opposed to long after-the-fact).
  • It is detailed, accurate, signed by the author, and dated.
  • It is typed or handwritten in a legible manner so that people unfamiliar with the author’s handwriting (like a judge or juror) will be able to read it without difficulty.
  • It is as objective as possible. Jurors often view subjective judgments suspiciously – even though they may suffice to support the challenged employment action from a strict legal standpoint.
  • It is given to and reviewed with the employee.
  • It is signed and dated by the employee.
  • The employee is given an opportunity to present any rebuttal in writing.
  • The documentation is consistent with the employer’s policies and practices.

Prevention Is Best

The best way to succeed is to avoid getting in front of the jury in the first place. The key to avoiding lawsuits is to treat employees fairly and with respect. To achieve this, you should maintain, disseminate, and implement policies designed to (1) adequately inform employees of performance deficiencies and provide them an opportunity to improve, and (2) prevent and/or promptly correct any unlawful behavior by supervisors or co-workers in the workplace.

Phillip M. Schreiber ( is a partner in the labor and employee relations department at Chicago-based McBride Baker & Coles. The department provides counseling and litigation services to employers in all areas of labor and employment law.


This article is provided solely for informational purposes and does not constitute legal advice. If you need specific legal advice, consult legal counsel.