• LinkedIn
  • YouTube
  • Twitter
  • Facebook
  • Google+

When worker complains, find out if she’s a ‘Serial sue-er’

by on
in Discrimination and Harassment,Employment Law,Human Resources

Sometimes, you can tell how seriously to take an EEOC or other discrimination complaint by checking to see if the employee (or applicant) has filed other discrimination lawsuits in the past.

If the complaint turns into a court case, an employee’s pattern of frivolous litigation may become powerful evidence a judge or jury will want to consider. Previous lawsuits are admissible as evidence if they are relevant to the new complaint, similar in subject matter, relatively recent and don’t unfairly prejudice the employee.

Recent case: Berencer Batiste-Davis sued her former employer, Lincare, after it fired her for taking medical records home to file—something that violated the HIPAA. Batiste-Davis said Lincare fired her because of her race.

Lincare tried to introduce evidence of a prior employment lawsuit, which had been dismissed. The judge allowed it, and Batiste-Davis lost the case. She appealed.

The 8th Circuit Court of Appeals ruled that the lawsuit should not have been admitted into evidence. Although it was a recent case, there was no evidence it was fraudulent. Nor were there multiple lawsuits.

Although it could have, the court didn’t order a new trial. Because the lawsuit evidence was a small part of a four-day trial, the court said the error hadn’t unfairly impacted the verdict. (Batiste-Davis v. Lincare, No. 06-4206, 8th Cir., 2008)

Final note:
Did you find out about an applicant’s past litigation? Consult your attorney before you refuse to hire someone based on past lawsuits. That could be viewed by courts as retaliation for protected activity.

Leave a Comment