What are privacy rights in discrimination litigation?

I am currently litigating a discrimination action. The defendants sent interrogatories requesting past employers, and all employers and places I have applied for employment to in the dates after my employment with them ended. Is this legally allowed discovery? Am I protected under right to privacy laws? And relevancy arguments. Basically is that even legal?

Ann Kiernan replies:

Not only is this legal, it is completely routine in discrimination cases. Defendants customarily ask for information about past employers so they can try to find out whether you were a poor employee in other jobs, or had been fired for incompetence, lying, theft, harassment, illegal drug use or some other serious cause. They will then use that information to challenge your credibility, but that’s fair game in litigation. Credibility is always relevant.

Since you have a legal duty to try to mitigate your damages by seeking new employment, the other side is absolutely entitled to ask about your job search efforts (or lack of same). And they are entitled to call those other employers and verify what you have said. By choosing to bring a public lawsuit, you have forfeited any right to privacy in that information.

However, if the defendants have asked for information that is completely irrelevant and unlikely to lead to the discovery of admissible evidence, you can ask the court to issue a protective order saying that you do not have to respond to the improper questions.

Posted 08-08-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:33+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.