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- Dec 8 2018 - Respected judge’s view on discovery is dangerous and wrong
A highly respected judge serving on the Third Circuit Circuit Court of Appeals recently told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that … Continue reading
- Nov 19 2018 - Medical leave as a reasonable accommodation
We often receive calls from employees and employers about unpaid medical leave from work. Callers want to know whether an employee who has a serious health condition under the FMLA, but who cannot return to work after 12 weeks of … Continue reading
- Sep 27 2018 - Sexual assault charges mount against Kavanaugh
One thing I have learned in 22 years of practice is that when it comes to sexual assault in the workplace, where there is smoke, there is fire. In every sexual assault case I’ve handled, the perpetrator assaulted multiple victims. In … Continue reading
- Jul 30 2018 - John Oliver tackles Sexual Harassment at Work
Workplace sexual harassment is real; it happens, and it happens a lot. Study after study has shown that it is one of the most harmful, traumatic power abuses that can be perpetrated against a victim. There’s no understating the seriousness … Continue reading
- Jul 6 2018 - Huge court win for #MeToo
In Minarsky v. Susquehanna County, 2018 WL 3234243 (3d Cir. July 3, 2018), the Third Circuit reversed summary judgment for the employer because a jury could find that the sexual harassment victim was reasonable in not reporting the harassment for … Continue reading
A highly respected judge serving on the Third Circuit Circuit Court of Appeals recently told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6th Circuit, chimed in, “Can I say amen?”
These judges are wrong. Their views on discovery, if sincerely held, are dangerous. Congress chose private parties – acting as private attorneys general – to enforce the laws requiring employers to pay what they owe and to treat people equally at work. Congress enacted fee-shifting rules to ensure lawyers would accept and litigate “small” cases – cases where the economic losses are less than $500,000 – because the social policies behind the laws are so important. Many economists would also argue that a $500,000 case to someone making $50,000 a year is much more important than a $50 Million case to Comcast, Apple, Amazon or GE.
When a case begins, the employer controls the witnesses, the documents, the emails, everything. Denying discovery would make cases that are already difficult on a good day impossible to win. No lawyer would agree to represent an individual in a civil rights case if the lawyer could not request documents from the employer or take depositions.
Any rule denying discovery in cases “worth” less than $500,000 would blow a hole through some of the most important federal laws ever written, deny justice to millions of working Americans, and make America less fair and less equal.