Employee acting as own lawyer? Expect delays

Sometimes, a former employee thinks he has a good discrimination case, but can’t find an attorney to represent him. There may be a good reason no lawyer will take a case.

That doesn’t dissuade some employees, especially the newly unemployed, who suddenly have lots of time on their hands. They’ll often decide to file their own lawsuits.

Unfortunately for employers, such pro se litigation can take lots of time (and money) to defend. Judges are often willing to indulge employees who act as their own lawyers by providing detailed instructions on how to revise a complaint that would have been summarily dismissed had it come from an attorney.

Then, following the judge’s guidance, the employee will refile the complaint and push the case forward. Here’s how that’s playing out in a recent case.

Recent case: Martin, who is of Jamaican origin, has an eye condition called keratoconus. He sued his former employer, Alclear, alleging disability and national origin discrimination.

Alclear asked the court to toss out the case, noting that the complaint contained no facts to support Martin’s allegations. For example, there was no explanation of what his disability allegedly was or where he was from.

But instead of dismissing the case, the court gave Martin step-by-step instructions on what he needed to include in the complaint to prove ADA and Title VII discrimination. Martin then revised the complaint, including a few additional details such as the name of his eye condition and his country of origin.

Alclear again asked for dismissal. The judge did dismiss the ADA claim, noting that despite his earlier detailed suggestions for what to include, Martin hadn’t alleged ADA discrimination.

However, by including his Jamaican national origin, Martin was allowed to continue his discrimination claim. (Anderson v. Alclear, LLC, ED NY, 2018)