Top Ten Motions In Limine

• Published date: 03 March 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals
• Law Firm: Peckar & Abramson PC
• Author: Mr Kevin O'Connor and Lauren Rayner Davis

The motion in limine is a critical weapon for the attorney defending a client against employment discrimination claims. Trial is won or lost based on the evidence that the jury sees and hears, so properly limiting that evidence can determine the trial's outcome before the jury is even empaneled. This article provides an overview of the most important motions in limine defense counsel should consider. Because discovery lays the groundwork for the motion in limine, this list also provides guidance for discovery that should be pursued to support exclusion of certain evidence.

1. Reasonable Cause Determinations and Materials Submitted During EEOC Investigations

We have previously written on the thicket of evidentiary arguments regarding admissibility of reasonable cause determinations by the Equal Employment Opportunity Commission (EEOC or Commission) and admissibility of statements and other materials gathered during EEOC investigations. Because of the complexity of this topic, the reader is invited to review The Evidentiary Impact of EEOC Reasonable Cause Determinations, DRI In-House Defense Quarterly, Summer 2014, for a more thorough treatment of these issues, including a detailed table of cases by jurisdiction.

The standards applied by the courts in determining admissibility in these cases are inconsistent from jurisdiction to jurisdiction, and in some cases appear little more than whimsical. As the EEOC is reporting a backlog of charges, a need for additional investigators, and a shortage of funding, challenging the admissibility of reasonable cause determinations'at trial and on consideration of summary judgment'may be even more important.

Employers facing EEOC charges must take the investigatory process seriously and remain mindful of the lasting effects of a reasonable cause finding. If the EEOC determines that reasonable cause exists to believe discrimination occurred (and the conciliation process is unsuccessful), defense counsel must develop and implement a plan to exclude that finding from evidence'or at least, minimize its impact on the jury. The above-referenced article provides ample materials to consider in developing a plan, as well as case law that may be helpful in preparing a motion in limine.

One recent opinion from a federal district court in the Fifth Circuit provides detailed analysis of the rationale for determining admissibility of a reasonable cause determination. In Nuccio v. Shell Pipeline Co., L.P., 506 F. Supp. 3d 382 (E.D. La...