Your Discrimination or Harassment Lawsuit: What to Expect
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For most people, being a plaintiff in a civil lawsuit is a new experience. There are certain procedures that are the same for any civil lawsuit, but there are things specifically relevant to discrimination and harassment lawsuits that you should be aware of.
EEOC and MCAD: What Are They?Both state and federal law require that all discrimination and sexual harassment claims start with an administrative agency. The federal agency is the Equal Employment Opportunity Commission ("EEOC") and the Massachusetts state equivalent is the Massachusetts Commission Against Discrimination ("MCAD").
You do not need to file in both the EEOC and MCAD. If you file in one, it will automatically open a docket in the other one. Once you have filed, you have a choice to continue in the agency process until there is a finding or a settlement, or remove your case and file it in state or federal court. |
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Statute of Limitations for Discrimination and Harassment Claims
The limitations period and related deadlines for discrimination and harassment claims can be confusing. In Massachusetts, you have 300 days (roughly ten months) from the discriminatory act to file in either the EEOC or MCAD.
Once you have done that, you have three years from the discriminatory act to file in court if you choose to do so. A note of caution: we have seen cases drag on in MCAD for longer than the three year period. If that happens, you will not be able to file a state court claim if you are unsatisfied with the MCAD proceedings or result.
To make matters more confusing, the federal court timeline works differently. If you ask the EEOC to dismiss your claim, or if it is dismissed on the merits, you have 90 days from the notice of dismissal to file in federal court, even if it has been longer than three years.
What you need to know at the beginning is that 300 days can go by very quickly, and if you do not file within that window you most likely will not be able to seek compensation for discrimination or harassment.
If you are approaching the 300 days and do not yet have a lawyer, you can file with EEOC or MCAD on your own (often called "pro se"). Both agencies are used to helping pro se plaintiffs file complaints. Though it is to your advantage to have an employment attorney on board before filing a complaint, if you are almost out of time you can begin the process and then find an attorney.
Once you have done that, you have three years from the discriminatory act to file in court if you choose to do so. A note of caution: we have seen cases drag on in MCAD for longer than the three year period. If that happens, you will not be able to file a state court claim if you are unsatisfied with the MCAD proceedings or result.
To make matters more confusing, the federal court timeline works differently. If you ask the EEOC to dismiss your claim, or if it is dismissed on the merits, you have 90 days from the notice of dismissal to file in federal court, even if it has been longer than three years.
What you need to know at the beginning is that 300 days can go by very quickly, and if you do not file within that window you most likely will not be able to seek compensation for discrimination or harassment.
If you are approaching the 300 days and do not yet have a lawyer, you can file with EEOC or MCAD on your own (often called "pro se"). Both agencies are used to helping pro se plaintiffs file complaints. Though it is to your advantage to have an employment attorney on board before filing a complaint, if you are almost out of time you can begin the process and then find an attorney.
How Long Does a Discrimination Lawsuit Take?
If you choose to remain in MCAD or the EEOC, the timeline can vary significantly. We have seen cases in MCAD go on for years without significant progress.
If you choose to pursue your claims in court, you will have to wait at least 90 days before removing your case from the MCAD. Once that is done and you file in court, the court will set a discovery schedule (usually 9 months to a year).
After discovery, the defendant might make a motion for summary judgment seeking to convince the court that you lack evidence to support your claims. The summary judgment process typically adds two months to the process, allowing time for the parties to brief and argue the issues and for the court to decide.
Traditionally, a trial date followed the summary judgment process by a period of months. Because of court backups caused by the COVID pandemic, this too has become unpredictable. Though we hope and expect this will change over time, currently we have clients who have waited as much as a year after discovery and summary judgment is complete to be assigned a firm trial date.
If you choose to pursue your claims in court, you will have to wait at least 90 days before removing your case from the MCAD. Once that is done and you file in court, the court will set a discovery schedule (usually 9 months to a year).
After discovery, the defendant might make a motion for summary judgment seeking to convince the court that you lack evidence to support your claims. The summary judgment process typically adds two months to the process, allowing time for the parties to brief and argue the issues and for the court to decide.
Traditionally, a trial date followed the summary judgment process by a period of months. Because of court backups caused by the COVID pandemic, this too has become unpredictable. Though we hope and expect this will change over time, currently we have clients who have waited as much as a year after discovery and summary judgment is complete to be assigned a firm trial date.
Discrimination and Harassment Damages: What to Expect
This is a really important question to discuss with your lawyer throughout the process.
If the discriminatory act was termination of your employment, the primary measure of damages will be your lost wages. The judge or jury will look at your back wages from the time of termination until the time of judgment. It will then subtract from this amount any replacement income you have earned and unemployment benefits you have collected. This is called "mitigation of damages." In plain English, you are expected to try to mitigate the harm you have suffered from termination by looking for alternative work. If you make no effort to do so, the court could subtract an amount from your back wages damages to reflect what other income you could have earned.
You can also, in an appropriate case, recover damages for emotional distress caused by the discriminatory conduct and/or your termination. These amounts can be difficult to predict, and often turn on both how clearly you can demonstrate the emotional distress (i.e., therapy, medication, physical symptoms) as well as how extreme the employer's conduct was.
Sexual harassment damages also vary. If the situation is so bad that no reasonable person would continue working in that environment, you may be able to resign and claim "constructive discharge." In that case, the damages work the same way as they do for a wrongful termination case.
If you can't prove constructive discharge, you can still recover damages for emotional distress caused by the harassment. If you were denied promotion or other job opportunities by your harasser, you may be able to recover the value of those opportunities. Finally, if you are terminated in retaliation for reporting sexual harassment, you can recover wrongful termination damages.
In all cases, if you are successful in your claims, the employer will have to pay your costs and attorneys' fees, as well as interest on the damages dating back to the date you filed the lawsuit.
If the discriminatory act was termination of your employment, the primary measure of damages will be your lost wages. The judge or jury will look at your back wages from the time of termination until the time of judgment. It will then subtract from this amount any replacement income you have earned and unemployment benefits you have collected. This is called "mitigation of damages." In plain English, you are expected to try to mitigate the harm you have suffered from termination by looking for alternative work. If you make no effort to do so, the court could subtract an amount from your back wages damages to reflect what other income you could have earned.
You can also, in an appropriate case, recover damages for emotional distress caused by the discriminatory conduct and/or your termination. These amounts can be difficult to predict, and often turn on both how clearly you can demonstrate the emotional distress (i.e., therapy, medication, physical symptoms) as well as how extreme the employer's conduct was.
Sexual harassment damages also vary. If the situation is so bad that no reasonable person would continue working in that environment, you may be able to resign and claim "constructive discharge." In that case, the damages work the same way as they do for a wrongful termination case.
If you can't prove constructive discharge, you can still recover damages for emotional distress caused by the harassment. If you were denied promotion or other job opportunities by your harasser, you may be able to recover the value of those opportunities. Finally, if you are terminated in retaliation for reporting sexual harassment, you can recover wrongful termination damages.
In all cases, if you are successful in your claims, the employer will have to pay your costs and attorneys' fees, as well as interest on the damages dating back to the date you filed the lawsuit.
Discrimination and Harassment Suit: Discovery
"Discovery" is the process by which the plaintiff and defendant gather information relevant to the case. People are often surprised by how broad the scope of discovery is. You should remember that while you are answering questions you don't necessarily want to answer, the other side has to do the same. Here are the kinds of discovery that usually happen:
Requests for documents. The documents from both sides are key to resolving the claims. You should expect to provide any letters, emails, notes or reports relevant to your claims. You also may be asked for other things, like documents relevant to your employment history or search for a new job. Your lawyer will be asking the other side for similar things. Your lawyer can object to certain requests if they are overbroad, irrelevant, or ask for privileged information. It is important, however, to share all relevant documents with your attorney even if they will not all be produced to the other side.
Interrogatories. These are written questions that you must answer under oath. Your attorney will ask you for information then help you write the responses. Again, your attorney can object to certain questions or try to limit the answers if appropriate.
Requests for admissions. This is a document that sets forth specific facts and asks you to admit or deny them. Sometimes these are straightforward and involve facts that are not really in dispute. In this case, the requests for admissions save time in discovery by establishing baseline facts. Other times they are a more strategic effort to get you to admit facts that are harmful to your case. Your lawyer will review these carefully with you and object where appropriate.
Depositions. These usually happen after all of the written requests above are answered. A deposition is a form of testimony, but happens outside of court. As plaintiff, you will have to give deposition testimony. Your deposition is extremely important to your case, so you should plan to spend time with your lawyer preparing for it. The deposition itself usually happens at the office of the other side's attorney. You can expect to be in a conference room with their lawyer, your lawyer, and the court reporter. Sometimes someone from the other side attends the deposition, but this is not the norm. You should plan for the deposition to last all day, though sometimes they are shorter.
Requests for documents. The documents from both sides are key to resolving the claims. You should expect to provide any letters, emails, notes or reports relevant to your claims. You also may be asked for other things, like documents relevant to your employment history or search for a new job. Your lawyer will be asking the other side for similar things. Your lawyer can object to certain requests if they are overbroad, irrelevant, or ask for privileged information. It is important, however, to share all relevant documents with your attorney even if they will not all be produced to the other side.
Interrogatories. These are written questions that you must answer under oath. Your attorney will ask you for information then help you write the responses. Again, your attorney can object to certain questions or try to limit the answers if appropriate.
Requests for admissions. This is a document that sets forth specific facts and asks you to admit or deny them. Sometimes these are straightforward and involve facts that are not really in dispute. In this case, the requests for admissions save time in discovery by establishing baseline facts. Other times they are a more strategic effort to get you to admit facts that are harmful to your case. Your lawyer will review these carefully with you and object where appropriate.
Depositions. These usually happen after all of the written requests above are answered. A deposition is a form of testimony, but happens outside of court. As plaintiff, you will have to give deposition testimony. Your deposition is extremely important to your case, so you should plan to spend time with your lawyer preparing for it. The deposition itself usually happens at the office of the other side's attorney. You can expect to be in a conference room with their lawyer, your lawyer, and the court reporter. Sometimes someone from the other side attends the deposition, but this is not the norm. You should plan for the deposition to last all day, though sometimes they are shorter.
Discrimination and Harassment Suit: Costs
If you are paying your lawyer by the hour, this can vary widely. It is a good idea to check in with your lawyer on a regular basis for an estimate of what is coming up. You can also discuss with your lawyer a budget for the different pieces of discovery.
If you have a contingent fee agreement with your lawyer, you will not be paying for the lawyer's time unless and until you recover compensation, either in a judgment or through a settlement. There are out of pocket expenses involved in a civil suit. There is a filing fee paid to the court ($200-400 depending on the court). If your case requires expert testimony (uncommon in the cases we handle), the expert will need to be paid.
The other main expense is for deposition transcripts. For your deposition and any others that are taken, the court reporter will charge for the transcript. This cost varies depending on the length of the deposition, but generally ranges from $300-$900 per deposition.
If you have a contingent fee agreement with your lawyer, you will not be paying for the lawyer's time unless and until you recover compensation, either in a judgment or through a settlement. There are out of pocket expenses involved in a civil suit. There is a filing fee paid to the court ($200-400 depending on the court). If your case requires expert testimony (uncommon in the cases we handle), the expert will need to be paid.
The other main expense is for deposition transcripts. For your deposition and any others that are taken, the court reporter will charge for the transcript. This cost varies depending on the length of the deposition, but generally ranges from $300-$900 per deposition.
How often should I hear from my lawyer?
Any time you have questions or concerns, you should be able to reach your lawyer or someone on their team. You also have a right to expect to hear from your lawyer any time there is a development in the case or a settlement offer.
You should understand that there are sometimes stretches of time in a civil lawsuit in which nothing is happening. For example, after you file an initial discrimination complaint in the MCAD or EEOC, it could be a month or longer before the other side files its response. Once you file papers in court, there is a 20 day period for the defendant to file an answer to the complaint. When motions are filed and opposed, neither side can control how long it takes for the court to take action on a motion.
You should understand that there are sometimes stretches of time in a civil lawsuit in which nothing is happening. For example, after you file an initial discrimination complaint in the MCAD or EEOC, it could be a month or longer before the other side files its response. Once you file papers in court, there is a 20 day period for the defendant to file an answer to the complaint. When motions are filed and opposed, neither side can control how long it takes for the court to take action on a motion.
How can I tell if a settlement offer is reasonable?
97.5% of civil cases settle before going to trial. There are a lot of reasons for this. One is that you or the other side may learn something in discovery that changes the strength of your claims. Another is that you see value in getting compensation without waiting two years for the process to play out. Finally, the results at a trial are highly unpredictable for all parties.Settlement means compromise. If you settle your case, you will be taking less than you want and the defendant will be paying more than they wanted to pay. Whether a settlement offer is reasonable is both a subjective and objective question.
Subjectively, you have to decide if it is something you are willing to consider. It may not get you what you want or feel is fair, but it may get you what you need to move on.
Objectively, your lawyer should be looking at the amount you may recover at trial and their best analysis of your chances of getting that result. For example, if your damages at trial would be $50,000 and your attorney believes you have a 50% chance of winning, they may tell you that a $25,000 settlement is reasonable. This will be particularly true if that offer comes early in the case before you have invested too much time and money.
Subjectively, you have to decide if it is something you are willing to consider. It may not get you what you want or feel is fair, but it may get you what you need to move on.
Objectively, your lawyer should be looking at the amount you may recover at trial and their best analysis of your chances of getting that result. For example, if your damages at trial would be $50,000 and your attorney believes you have a 50% chance of winning, they may tell you that a $25,000 settlement is reasonable. This will be particularly true if that offer comes early in the case before you have invested too much time and money.
How Our Employment Lawyers Can Help
If you have questions about your civil case, we can help you assess the case and understand your options going forward. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
