Employment Litigation: Affirmative Defenses Checklist

by Practical Law Labor & Employment

A Checklist that outlines key considerations for defendant employers and their counsel when asserting affirmative defenses in an answer to an employment-related complaint in federal court. This Checklist provides guidance on the procedural requirements for pleading defenses under the Federal Rules of Civil Procedure (FRCP), including the critical need to assert defenses in a timely manner to avoid potential waiver. It addresses the existing split of authority among federal courts on whether the heightened plausibility pleading standards from Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal apply to affirmative defenses. This resource reviews generally applicable affirmative defenses listed in FRCP 8(c) and explores numerous defenses specific to employment law claims, such as failure to exhaust administrative remedies, the Faragher-Ellerth defense, bona fide occupational qualification (BFOQ), and good faith defenses under the Fair Labor Standards Act (FLSA). It also provides practical advice on how to effectively state defenses while avoiding common pleading pitfalls. For state-specific versions, see State Employment Litigation and Arbitration Toolkit.