Deposition preparation in an employment discrimination matter concentrates on the but-for compensation path, the front pay period, and mitigation. Opposing counsel will test whether the raises, bonuses, and promotions in the but-for path are supported by the employer's practices and comparator data, whether the front pay period rests on evidence about the employee's age, occupation, and job market, and whether replacement earnings were measured from the actual job search rather than assumed. The economist should be able to show the back pay, front pay, and benefit components separately and the result under alternative front pay periods and mitigation assumptions.
Checklist
Confirm each element of the but-for path is tied to a policy, a comparator, or the employee's own history
Review the front pay period and its evidentiary basis
Verify the replacement earnings against the job search record and the replacement employer's records
Confirm the benefit and equity components are valued from plan documents
Assemble the reliance file and compare assumptions with the opposing report
Questions to ask the economist
What supports each raise and promotion in the but-for path?
How did you set the front pay period, and how does the total change under a shorter one?
How did you treat periods when the employee was not searching for work?
How did you value the equity awards the employee would have received?
Timeline
One to two preparation sessions in the two weeks before the deposition, after the report and the employer's compensation records are final.
Required documents
The final report with back pay, front pay, and benefits shown separately
The employer's compensation policies and comparator data relied on
The job search record and replacement employment records
The opposing economist's report
Common pitfalls
Building the but-for path on promotions the record does not support
Presenting a front pay period with no stated basis
Ignoring gaps in the job search, which the opposing economist will use to impute replacement earnings
How does the economist address a claim that the employee failed to mitigate?
By presenting the job search record and the replacement earnings actually received, and by showing the result under the alternative that the opposing side proposes. Whether the search was reasonable is a question for the fact finder; the economist's role is to make the effect of each position visible.
How does the economist handle a question about the employee's performance?
By explaining that the but-for path assumes continued employment and applies the raises and promotions the employer's practices and the comparators support, and that the economist did not evaluate performance. If the opposing side contends the employee would have been terminated or passed over anyway, the report can show the loss under that assumption, but the assumption itself is for the fact finder.
What should be in the reliance file for a discrimination case?
The employee's pay history, the employer's compensation policies and comparator data, the benefit and equity plan documents, the job search log and replacement pay records, and the data sources for wage growth and discounting. The comparator selection should be documented, because opposing counsel will ask why those employees and not others. The file should show the criteria used.
References
U.S. Bureau of Labor Statistics. (n.d.). Current Population Survey (CPS). U.S. Department of Labor. bls.gov
U.S. Bureau of Labor Statistics. (n.d.). Occupational Employment and Wage Statistics (OEWS). U.S. Department of Labor. bls.gov