All too frequently, employment attorneys fail to counsel their clients with respect to documentary and evidentiary issues until after the client has been served with an employment discrimination complaint in a federal action. Counsel who act proactively, however, can assist their clients both in adopting and following policies and procedures that are likely to create favorable and admissible evidence long before a legal claim is ever asserted. There are many steps along the road to the filing of a complaint which present both employer and employee alike opportunities to “build their case.” This article discusses some, but by no means all, such opportunities.
Personnel Files
Often, evidentiary issues in employment discrimination cases revolve around items in the plaintiff’s personnel file, such as performance evaluations, documentation of disciplinary action and workplace complaints by other employees. While such items are frequently vulnerable to challenge under the hearsay rule, some exceptions to the hearsay rule may be applicable to render them admissible. Counsel familiar with the parameters of these exceptions can assist their clients in developing favorable procedures for maintaining personnel files.
