Key factors to consider when litigating racial discrimination and national origin discrimination employment cases Zuckerman Law is a Washington, DC-based law firm that represents employees and litigates employment-related disputes. The firm is dedicated to zealously advocating on behalf of workers whose rights have been violated to achieve justice and accountability. Eric Bachman holds extensive litigation experience, including trials in federal and state courts, and has also set important precedent on employment discrimination issues at the appellate level. Bachman litigates employment cases, including “glass ceiling” discrimination cases where an employee is denied a promotion because of their gender, race, national origin, religion or other protected characteristic.

1. NELA Fall 2020 Conference
“The Time Has Chosen Us:”
Litigating Race & National Origin Claims
Eric Bachman
Zuckerman Law

2. Trial
• Roadmap
• Pretrial motions/motions in limine
• Voir dire/jury selection
• Themes/opening and closing arguments
• Witnesses
• Jury Instructions
• Damages
• Post-trial motions
• Media
Eric Bachman, Zuckerman Law

3. Pretrial motions/motions in limine
• Use of the “N word”
• Plaintiff Paul may want to exclude
• Prior lawsuits
• Prior discipline or employment history
• Immigration status?
• Defendant Delta may want to exclude
• “me too” witnesses
• Other discrimination lawsuits against the company
Eric Bachman, Zuckerman Law

4. Voir dire/
jury selection
• Purpose of voir dire
• Questionnaires/research on
jurors
• Specialized topics
• Trust in the court system
• Support for Black Lives Matter, All Lives
Matter, and other groups
• Thoughts on immigration
• Striking jurors – cause v.
peremptory
Eric Bachman, Zuckerman Law

5. Themes/Opening
and Closing
Arguments
• The importance of themes and Rules of
the Road
• Retaliation can have a different appeal
to some jurors
• Focus groups, focus groups, focus
groups
Eric Bachman, Zuckerman Law

6. Witnesses
Order of witnesses
“me too” witnesses
Experts
Friends/family members
Eric Bachman, Zuckerman Law

7. Jury instructions
• Get stipulations where
appropriate
• “But for” versus mixed-
motives/ “motivating
factor” causation
• 1981 requires “but for” Comcast v.
NAAAOM, 140 S.Ct. 1009 (2020), as
do Title VII retaliation claims
• Motivating factor available for Title
VII discrimination: 42 U.S.C. 2000e-
2(m)
• Tread carefully with mixed
motives
Eric Bachman, Zuckerman Law

8. Damages
• Title VII capped damages versus 1981 uncapped
• Punitive damages
• Using themes to drive it home
• Compensatory/emotional distress damages
• How to present in light of studies showing juries give lower awards to Black plaintiffs
Eric Bachman, Zuckerman Law

9. Post-trial
motions
•Remittitur
•Rule 50 JMOL and Rule 59
motion for a new trial
Eric Bachman, Zuckerman Law

10. Media/publicity
• First and foremost, know your judge
• What is your goal in contacting
media
• Model Rules of
Professional Conduct Rule 3.6
Eric Bachman, Zuckerman Law

11. THANK YOU!
Eric Bachman, Zuckerman Law