Deposing the
Supervisor/Harasser
Questions for learning about employee handbook, harassment training, relationship with plaintiff, job criticisms, and human resources investigation
by Elizabeth Hubbard
Excerpted from Litigating Sexual Harassment & Sex Discrimination Cases
The alleged harasser’s deposition is critical to
bolstering your client’s claims and preparing to defend against a
possible summary judgment motion. This is particularly true in a “he
said/she said” type case. It is also the only real opportunity you will
have before the harasser takes the witness stand to hear directly from
him as to the events that led up to the lawsuit. This information is
critical in sexual harassment cases, where there frequently is an
absence of witnesses to the sexually harassing conduct.
Draft Deposition Outline [§7.83]
Your discovery plan should include general information
you hope to obtain from the alleged harasser’s deposition. Fine tune
that plan in light of discovery received.
Generally you will need to cover the following
topics with the alleged harasser:
- Background information;
- Employment history;
- Working relationship with the plaintiff;
- Personal relationship with the plaintiff;
- Each incident of alleged harassment;
- Each element of each cause of action alleged;
- Each alleged affirmative defense.
Review your deposition outline with the plaintiff,
who may have valuable insight into other areas for discussion.
Gather Documents [§7.84]
Thoroughly review the documents produced by the employer
and the alleged harasser. Make four copies of those you intend to use at
the deposition: one for you, one for the alleged harasser, one for the
alleged harasser’s counsel and one for the court reporter, who may be
instructed to attach this copy to the deposition transcript.
Depose Alleged Harasser [§7.85]
A deposition is a process of gathering information, so
the single most important task for you during the deposition is to
listen to the answers. While the deposition outline you have prepared is
valuable, it is not a document brought down from the Mount by Moses.
Listen to the deponent’s answers and follow up when necessary. It may
take you into areas you had not anticipated, but keep going and see
where the testimony takes you. Imagine your embarrassment later when you
discover the following exchange in the transcript:
A: “Oh, yeah, I had to grab those boobs. They are
just so cute.”
Q: “Tell me about your work history prior to your
employment with ABC Company.”
1. Areas of
Inquiry [§7.86]
Although the testimony will vary from case to case,
depending on the facts, in most cases you will want to cover the
following areas of inquiry with the alleged harasser:
a. Background [§7.87]
Information about the alleged harasser’s background
(age, education, residence address, marital status, children, etc.) is
valuable in assessing who he is and what motivates him.
b. Employment History
[§7.88]
What is the alleged harasser’s employment history? Ask
detailed questions about previous employers (names, addresses, dates of
employment, reasons for leaving, claims of sexual harassment). Attempt
to elicit performance problems at other employment which may correlate
with the very problems your client experienced with him. For example,
was he previously fired or reprimanded for sexual harassment or similar
conduct? Ask if he maintains any personal or social relationships with
any former supervisors or co-workers.
c. Employment Status
[§7.89]
What is the alleged harasser’s employment status in
relation to your client? This is an important line of questioning if you
expect a defense that the alleged harasser was not a supervisor/manager.
Inquire about his job duties, and get an exhaustive description of his
daily job responsibilities. What is the extent of his authority to hire,
promote, transfer, terminate employees, assign work, evaluate
performance, give salary increases and discipline employees? What was
the extent of his authority over the plaintiff?
d. Incidents of
Harassment [§7.90]
Obtain the facts of each alleged incident of sexual
harassment. How does the alleged harasser’s version of events compare to
the plaintiff’s? Can the alleged harasser explain the discrepancies? How
does he excuse these events?
e. Other Incidents,
Comments, Actions [§7.91]
Ask about incidents of sexual harassment toward other
employees. Learn the facts regarding any incident of sexist comments or
actions by the alleged harasser. The conduct of the harasser in regard
to other women is probative of sexual bias and relevant to a sexual
harassment lawsuit.
f. Company
Policies [§7.92]
Explore the company’s policies prohibiting sexual
harassment:
- Does the company have a written policy prohibiting sexual
harassment?
- Has the harasser ever seen or reviewed the policy?
- When did he first review the policy?
- Where has he seen and reviewed the policy (e.g., company
handbook, company bulletin board, sexual harassment training
session)?
- Did he sign an acknowledgment form upon receiving a copy of the
policy?
- Has the harasser seen a copy of the policy again, since the
first time he acquired/reviewed it? (This question should determine
whether the employer periodically re-issues the policy).
Ask him to describe, using specific examples, the type
of behavior or conduct the policy prohibits. Describe for him examples
of sexual harassment (as experienced by your client) and ask if, based
upon his understanding of the policy, such conduct is prohibited at the
workplace.
g. Knowledge of Sexual
Harassment Law [§7.93]
What is the extent of his knowledge of the statutes that
prohibit sexual harassment in the workplace, such as Title VII and/or
your state’s FEP statutes?
h. Training [§7.94]
What training has the alleged harasser received
regarding sexual harassment in the workplace? What are the dates of each
training session he purportedly attended? What happened at each, e.g.,
who conducted the training, where was it, how long did it last, what
type of documents were distributed, were any visual aids used?
Review Documents [§7.95]
Review documents signed and/or generated by the alleged
harasser. False statements or half- truths on employment applications
submitted to the defendant or to previous employers will be valuable.
Often these documents contain (frequently in very tiny print, but there
nonetheless) statements to the effect that the applicant is swearing
that all information is the gospel truth. If the harasser lied on his
employment application, your line of inquiry is whether he thinks it is
appropriate to lie to his employer, has he done it since he got the job,
does he think that giving a partially truthful answer is acceptable,
etc.
DEPOSITION OUTLINE OF ALLEGED SUPERVISOR HARASSER
I. PRELIMINARY QUESTIONS & INSTRUCTIONS
A. Admonitions
B. Personal
Information
1. Name
2. Known by any other names
3. Date of Birth
4. Place of Birth
5. Current address
a. Apartment or home
b. Own or rent
c. How long lived there
d. Secondary residences
6. Prior Addresses
a. Address for previous 5 years—number and street
b. Dates at each
c. Rental, ownership
d. If rental, name and address of owner
7. Current employer
a. Address
b. Start date
c. Job title
d. Salary
e. Benefits
8. Social Security Number
9. Are you presently married? If yes, with respect to
your spouse:
a. Full name/maiden name
b. Age
c. Spouse's employer
d. Dates of employment
e. Title, duties and responsibilities
f. Hours worked
g. Salary or wage
10. Have you been divorced? Separated? Have you had a
marriage annulled?
11. Children
a. Names and ages of all natural, step, foster or adopted
children
b. Do any of your children work?
1. Name of Employer
2. Duties and responsibilities
3. Salary
4. Dates of employment
5. Reasons for termination of employment
12. What is your citizenship?
a. Have you been authorized to work in
b. Do you have proof of authorization to work in
13. Have you ever been arrested?
a. When?
b. Where?
c. For what?
d. Circumstances surrounding
e. Ultimate resolution
14. Have you ever been convicted of a felony?
a. When?
b. Where?
c. For what?
d. Circumstances surrounding
e. Ultimate resolution
15. Have you ever been in jail?
16. Have you entered into an agreement with anyone regarding this
lawsuit?
a. Parties
b. Terms
c. Date
d. Is the company paying for your legal expenses? If so, how
much? Is there a cap on the amount of legal fees? What is that cap?
e. Did the company advise you that you needed to retain
separate counsel? Why?
17. Have you ever filed bankruptcy? When? What court? What was the
outcome?
18. Have you ever been a party to any litigation? Details?
19. Have you ever been a witness in any lawsuit? Details?
C. EDUCATION
1. Details of educational background:grade school, high
school, college, post college.
2. Did you graduate from each institution? If not, why not?
3. What training classes have you taken with any employer?
(Eg. Sexual harassment training, Title VII training)
4. Any discrepancies between the deponent’s resume and what
he/she has just stated?
5. Any discrepancies between any job application or other
document which the deponent has filled out with the current employer, or
prior employers, and the sworn testimony? (NB: be sure to subpoena prior
employer’s records and obtain personnel file of deponent from current
employer).
II. EMPLOYMENT HISTORY
A. Starting with
post high school, list all employers.
1. Positions held with each employer?
B. Any supervisory
responsibilities? How many persons did you supervise?
1. In each supervisory position, were you responsible for
administering, monitoring Title VII management duties?
2. What were you obligated to do in monitoring Title VII
compliance?
III. HIRING BY DEFENDANT
A. When?
B. What position
were you hired for?
C. Who interviewed
you?
D. What information
were you given about sexual harassment when you started?
E. Was this
information updated ever? (Eg., personnel handbook)
IV. POSITIONS HELD WITH DEFENDANT
A. Identify all
positions held with the company
1. What were your job responsibilities?
2. Did you supervise any employees? What were the positions
of the persons you supervised?
B. Performance
evaluations
1. Identify as exhibits any performance evaluations that
address job criticisms of alleged harasser
2. How were these criticisms resolved?
C. Has any employee
prior to the plaintiff accused you of inappropriate conduct?
1. Who?
2. What happened? (Get all details)
3. Who investigated the allegations?
4. When was this allegation made?
5. By whome?
6. What was alleged?
7. How was the matter resolved?
V. EMPLOYEE HANDBOOK
A. When did you
receive it?
B. Has it been
updated?
C. When has it been
updated?
D. What material
was given to you as updated material?
E. Did you read the
handbook when you received it?
F. Did you read the
updates?
VI. EMPLOYEE TRAINING ON SEXUAL HARASSMENT
A. Did you receive any
training on sexual harassment?
1. What was your training?
2. When?
3. How conducted?
4. By whom?
5. Where?
6. How long did the training sessions last?
7. Who was required to attend?
8. Did you attend all sessions?
9. Did you take any notes during your training sessions?
10. Where are those notes?
11. Why were the notes not produced?
B. Did you receive
any other types of training concerning employment discrimination?
1. What was your training?
2. When?
3. How conducted?
4. By whom?
5. Where?
6. How long did the training sessions last?
7. Who was required to attend?
8. Did you attend all sessions?
9. Did you take any notes during your training sessions?
10. Where are those notes?
11. Why were the notes not produced?
C. What is your
understanding of your obligations as a manager if you are confronted
with an allegation of sexual harassment?
D. Is it your
understanding that sexual harassment allegations should be reported to
someone else in the organization?
1. To whom would you report allegations of harassment?
2. When?
3. How do you know this information?
4. Have you ever reported allegations of sexual harassment?
5. When? To whom?
VII. HIRING OF PLAINTIFF
A. Who hired the
plaintiff?
1. Were you consulted?
2. Why not?
B. For what
position was the plaintiff hired?
1. Prior to your supervision of the plaintiff, did you know
of any job criticisms of her work?
2. What were the criticisms?
3. Who made these criticisms?
4. Did the plaintiff’s job performance improve, to your
knowledge?
VIII. RELATIONSHIP WITH
PLAINTIFF
A. When did the
plaintiff commence reporting to you?
B. How was her job
performance?
C. What were her
job responsibilities?
D. Did you ever see
the plaintiff off the premises of the company?
1. When?
2. What were the circumstances?
3. Who was present?
4. What occurred?
5. Where were you and she?
6. What was discussed? What did you say to her? What did she
say to you?
E. Did you ever
call the plaintiff at home?
1. Why?
2. What was discussed?
3. How often did you call the plaintiff at home?
4. Did she ever initiate a telephone call to you?
F. Did you ever
follow the plaintiff?
1. When?
2. Why?
3. What was the purpose of following the plaintiff?
4. Were you in your car? Was she in her car?
5. How far did you follow her?
6. Did you attempt to communicate with the plaintiff? (Eg.,
by car phone, cell phone?)
7. What was the plaintiff’s response? Was she upset to your
knowledge?
G. Did you ever
send emails to the plaintiff that were not related to business?
1. What emails?
2. Why?
3. What was her response?
4. Do you have copies of these emails?
5. Did you give any non-business related emails to
allegations became known? Why not? Did they ask you for any emails?
6. Did you send these emails to anyone else?
7. What was the content of each email?
IX. ALLEGATIONS OF PLAINTIFF AND HIS RESPONSES
A. The EEOC charge
1. Mark as an exhibit.
2. Have you reviewed this document?
3. When?
4. How did you receive this document?
5. From whom?
6. What was discussed when you received this charge?
7. Please review the charge and advise as to what you
consider to be inaccurate in the charge.
B. The complaint
1. Mark as an exhibit.
2. Have you reviewed this document?
3. When?
4. How did you receive this document?
5. From whom?
6. What was discussed when you received this charge?
7. Please review the charge and advise as to what you
consider to be inaccurate in the charge.
8. Your position is that the plaintiff has fabricated these
allegations. Why do you think that?
C. Others with whom
he has discussed the charge/complaint.
1. With whom have you discussed the allegations?
2. When?
3. What did you say? What did the other person say?
4. Have you asked any person for a written statement? Has
your attorney?
5. Have you taken notes of any conversations? Recorded any
conversations? Why?
6. Do you keep any kind of journal, diary or day planner?
Have you recorded anything about the plaintiff’s allegations in any of
these documents?
7. Have you advised any family members about this
litigation? Why not?
X. JOB CRITICISMS OF PLAINTIFF; ANYTHING
DOCUMENTED?
A. What job
performance criticisms of the plaintiff did you have?
B. Did you discuss
your concerns with her?
C. Did you report
your concerns to human resources? Why not?
D. Did the
plaintiff improve after you discussed your concerns with her?
E. How long had you
felt that the plaintiff had been deficient?
F. Were you aware
of her allegations concerning sexual harassment when you issued her
performance improvement plan? Why did you not write up the
performance improvement plan until after you learned of her allegations?
XI. HUMAN RESOURCES INVESTIGATION
A. CHRONOLOGY
1. When did you first learn of the allegations?
2. From whom?
3. What did you say?
4. What did the other person say?
5. Have you discussed these allegations with your
supervisor? Why not?
6. How did you first learn of the allegations?
B. What was he
asked and by whom?
C. What were his
responses?
D. Have you ever
observed the plaintiff distressed or distraught in your presence?
1. When?
2. What was upsetting her to your knowledge?
3. What did you do?
4. Did anyone else ever talk to you about the plaintiff
being upset at work? Who? What was said? What did you say?
5. Did you report the plaintiff’s distress to human
resources? Why not?
6. Did you report the plaintiff’s distress to your supervisor
Elizabeth Hubbard is a partner in the firm of
Pappas, Hubbard, O'Connor, Fildes, Secaras, P.C. with offices in
