To plaintiff attorneys: in pretty much every discrimination case I’ve had, there was a well documented reason for the termination. The only evidence of discrimination or retaliation was that the terminated employee was of a protected category or the termination was within a year of some sort of protected activity. Do you take those cases, and why? Do you expect you won’t uncover evidence of discrimination? But just take them on the chance you might?

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This is an interesting question, but it also seems to suggest documentation is the end-all be-all. People who are abrasive or bad at their jobs can still be discriminated against, and managers can build a paper trail that is technically true but driven by discriminatory animus. Have you never had something pop up in discovery and change how you saw a case you thought was frivolous? I think it's important for defense attorneys to mind how we think and talk about plaintiffs, because cynicism as the default makes us worse lawyers and worse humans.

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If you’re management side you should know the answer…these cases are, more often than not (and I know there are some valid ones) shake downs.

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I think this is spot on + contingency fee arrangements.

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I’m not a plaintiff’s lawyer, but I’ll ask you a question about your question: Have you ever settled one of these cases?

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Those sound like mediocre cases that should settle for, at most, a few months of severance. I am on the other side, but plenty of lawyers take those cases. Some file charges and let them languish forever. Some litigate aggressively and lose on MSJ. Some negotiate before filing a charge. In my experience, most terminations are not that well-documented, so you might want to dig in a bit more and be more skeptical.

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I’m a plaintiff side employment attorney practicing in New York where the standard is a lot lower- if the plaintiff was treated less well even IN PART for a discriminatory reason, or the discrimination played even some small role, you can make the prima facie case. Because of this, any act of discrimination- even with a documented reason- brings risk and forces the employer to consider settling.

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I’ve litigated lots of these cases on the management side. Plaintiffs’ attorneys take them because they generally settle in the $10k-$50k range for minimal effort. I think most PAs know that if the cases were to be fully litigated, they’d lose. But they also know that companies would rather throw a disgruntled former employee some cash to go away rather than litigate the case for hundreds of thousand of dollars.

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One factor I haven’t seen here is information disparity. Putative plaintiffs arrive for an intake meeting and describe how they were discriminated against for X protected category or retaliated against for Y protected activity. But they usually do not and cannot have access to the slew of documents about performance issues. And bias is a factor here - plenty of plaintiffs will not admit that they frankly were terrible employees, even in the face of indisputable evidence. So the putative client paints a very rosy picture, the plaintiffs firm accepts the work, they ride off into discovery, and then the wheels fall off and they still settle for half a years’ salary because the employer just doesn’t want to pay to litigate the case through summary judgment.

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And we recently settled for an absurd amount because client didn’t want to go through summary judgment. All in a days work lol

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Those sound like nuisance value cases or things that, at times, you can negotiate severance on.

An attorney may take them because a claim letter may yield some kind of resolution due to costs of litigation. I push hard against taking these types of cases, but I know attorneys who literally just take these and farm claim letters because $25k settlements add up.

It’s a racket.

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