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. Taylor v. VirginiaUnion University, Johnson v. Virginia Union University, __ F.3d __, 79 Fair Empl. Prac. Case 994, 1999 U.S. App. LEXIS 2599 (4th Cir. 1999).

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.



     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 U.S.?

              b.   Do you have proof of authorization to work in U.S.?

          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?


          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).


     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?


     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)


     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?


     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?


     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?


     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?


     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?


     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?


     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?



          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 Chicago and Rock Island, Illinois. The firm represents both plaintiffs and employers in employment discrimination and labor-related issues. Ms. Hubbard is a frequent speaker on employment discrimination issues. She was co-counsel on the case ofMarek v. Chesney, 473 U.S. 1 (1985), which established the parameters of Rule 68 offers of judgment. Ms. Hubbard has tried numerous jury trials to verdict in federal courts. She is the author of Litigating Sexual Harassment & Sex Discrimination Cases, from which this article is excerpted.