The purpose of a “demand letter” – the proverbial “shot across the bow” – in legal matters generally and employment discrimination matters specifically is, in sum, to (1) alert the target (in an employment discrimination case, the employer) to the existence of a legal issue, (2) express an interest in attempting to resolve it (typically before litigation is commenced), and (3) invite them to the negotiating table.
There are as many approaches to drafting a demand letter as there are lawyers, and the most effective approach – both in terms of content, style, and tone – depends on the circumstances. Demand letters vary in length, complexity, style, content, and tone.
Here are some general guidelines to bear in mind when sending a demand letter in an employment discrimination case:
1. Keep it objective. While it may be tempting to use the demand letter format to vent your anger – which may very well be justified – regarding your situation, a subjectively-written letter is less likely to achieve the desired result.
2. Concisely outline the relevant facts. While it may seem that every event, encounter, and incident is relevant to your claims, by “throwing in the kitchen sink”, you run the risk of diluting an otherwise clear and powerful message. Lawyers are trained to organize, evaluate, and filter/distill large amounts of data in a way that factually supports one or more legal claims.
3. Identify and summarize the applicable law. Employment law consists of a vast, ever-changing patchwork of statutory law, regulatory law, and case law (judicial decisions). Misidentifying the proper law – for example, Title VII of the Civil Rights Act of 1964 where the employer does not have the minimum number of employees – will not help, and may hurt, how the employer perceives your position.
4. Apply the law to the facts. Having outlined the relevant facts and identified the applicable law, the next step is to apply the law to the facts. In an employment discrimination case, it is crucial to be able to articulate why and how the employer unfairly treated an employee – whether in the form of one or more “adverse employment actions” or a “hostile work environment” – because of a characteristic protected by law (or, in the case of “retaliation”, “protected activity). By failing to link these concepts, the allegations of a demand letter may well be disregarded by the employer.
5. Supporting evidence. The decision of whether to include supporting evidence or documentation with a demand letter depends on the facts and circumstances. This is a tactical decision that is best made with the input of an experienced employment attorney.
6. The “demand”. Sometimes it makes sense to include an actual, numerical demand in the demand letter, sometimes it does not. In employment discrimination cases, the specific damages that might ultimately be recoverable – whether they are lost wages, emotional distress damages, or punitive damages – are usually not readily predictable at the beginning of the case.
7. Litigation hold. Lastly, the letter should inform the employer/ recipient of their obligation to retain and not delete information and documents relating to the subject matter of the case.
8. Deadline. Some demand letters include a deadline by which a response is requested, or some event (filing a charge of discrimination at the EEOC, for example) will occur. This is a double-edged sword: while including a deadline may be a way to increase the likelihood of a response, the failure to move forward if the deadline comes and goes might diminish your credibility – i.e., “the employee who cried discrimination.”
The above commentary is not meant to be an exhaustive list of what a demand letter should or must include. I have had factually and legally-detailed demand letters ignored, and simple, one-page letters result in productive dialogue and substantial settlements. What is clear is that a well-written demand letter is an effective way of opening a potentially-productive line of dialogue.