CURRENT EVIDENTIARY ISSUES IN EMPLOYMENT LITIGATION

Employees and their lawyers have increasingly pursued employment litig ation as cases to be tried to juries in federal and state court, parti cularly since the recent amendments to Title VII. Rules of evidence ta ke on a greater significance in such matters as compared to bench tria ls and arbitrations under collective bargaining agreements. The creati vity of the advocacy of both employee and employer counsel is often co nstrained by evidentiary rules and precedent. While the nature of evid entiary rulings often makes it hard to generalize and to predict rulin gs, it is helpful for both advocates and counselors in this area to co nsider how evolving interpretations of classic evidence concepts can i mpact current claims. Of particular note is the Supreme Court's recent decision approving-with substantial limitations-the ''after-acquired evidence'' concept as a defensive technique. The upsurge in sexual har assment litigation is testing the limits of the concept of ''expert'' testimony and also invites special attention to a recent amendment to Rule 412 of the Federal Rules of Evidence. Other recurring and new evi dence problems unique to employment litigation include the use of ''st ray remarks,'' statistics, Equal Pay Act ''comparators,'' and internal E-mail documents.