Today, more and more workplaces are going “paperless,” meaning that they use as little paper as possible. Many of the records and documents that used to reside in hardcopy now exist as digital files or information stored in the cloud. While workplaces going paperless is often a good thing for the planet, it may be a tricky one for some workers who are harmed by workplace discrimination. For some workers seeking to pursue discrimination claims, the pathway to essential information needed to make their cases may be blocked by an employer that claims that the technology platform or app it uses cannot generate the documentation the employee has requested. If you are an employee who encountered this kind (or any other kind) of roadblock to essential proof, a knowledgeable New Jersey employment discrimination lawyer can show you how to go about pursuing that evidence.
A.F. was one of those workers: an employee harmed by age discrimination and whose essential evidence was contained in a cloud-based software platform.
A.F. began working in the advertising sales department of a major North Jersey newspaper in 2004. When she took the job, she was 48 years old. After a major media corporation purchased the paper in 2016,
Allegedly, A.F. flourished in her role, as she routinely earned excellent ratings on her performance evaluations during her decade-plus with the employer. According to her lawsuit, he supervisor put her on a “coaching plan” in December 2019, even though she met her sales targets for 2018 and 2019.
A few months later, the employer fired the woman. The employer claimed that A.F. didn’t meet her goals but that was just a bogus “pretext for unlawful discrimination” based on age, according to the lawsuit. The woman asserted that the employer hired “no less than four new account executives” ages 26-35 in the six months before her termination.
Clearly, given the alleged facts and the center of this age discrimination dispute, evidence of A.F.’s satisfactory (or unsatisfactory) performance — as well as proof of A.F.’s performance in comparison to her younger coworkers — would be very powerful. That’s because one established methodology for proving age discrimination is to use what’s called “comparator” evidence — which entails identifying one or more coworkers who are similarly situated to you, except for the fact that they’re not in your protected age group and they were treated more favorably than you were.
Under that theory, A.F. submitted “Salesforce reports” to establish proof of her performance on the job. She filed a discovery request seeking to force her employer to turn over similar reports on the younger comparator coworkers she’d identified in her case. (Salesforce is a cloud-based management platform that also allows businesses to track and monitor sales employees’ performance. These performance results appear as screen displays within the Salesforce application’s “dashboard.”)
Pursuing a Rule 30(b)(6) Deposition
The employer opposed the documentation request, arguing that it couldn’t provide the screenshots the woman requested. Specifically, the employer argued that what the plaintiff asked for was a series of contemporaneous “screenshots of the Salesforce Dashboard that displays the user’s real-time data.” Because the sought-after information was just a group of screen grabs that only existed in the moment, it could not be recreated, according to the employer. Instead, the company provided an Excel spreadsheet.
Ultimately, the court concluded that the plaintiff was entitled to more evidence and that the two sides should engage in what’s called a Rule 30(b)(6) deposition, which is a deposition of a corporation or other business entity. Specifically, this deposition would allow the employer to designate a representative who would testify about the platform’s functionality and its limitations.
A.F.’s case is a good reminder that, as the world of work continues to become more technologically advanced, employers’ records and documentation about employees and their work performance will, more and more often, be the stuff of electronic discovery, not the disclosure of paper documents. This creates the possibility of employers trying to dodge disclosing essential information in a discrimination action by hiding behind their technology’s complexity or obtuseness.
If the information you need to make your case is something your employer tries to stonewall you from getting, fight back with the aid of skilled legal counsel. The experienced New Jersey age discrimination attorneys at Phillips & Associates are here to provide you with that sort of powerful legal representation. Whether your discrimination action relies upon comparator evidence or some other avenue of making your case, count on us to help you get the proof you need. To find out more about how we can help you, contact us online or at (866) 530-4330 to set up a free and confidential consultation today.