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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 118286
Experience:  20+ Years of Employment Law Experience
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Why would a company want to settle out of court on a ADA, HIPAA

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Why would a company want to settle out of court on a ADA, HIPAA and EEOC case (possibly for more $$), when it appears that the most a plaintiff can only get is back pay plus 50k?
The reason employers seek to settle these matters, sometimes for more money than you think, is because they are considering the cost of litigation in their calculations and even if they can save 1/2 of the litigation costs they are happy. This is why you may be seeing a settlement offer of more than you believe you could get if you went to court and under the ADA there are no limits on recovery.

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Law Educator, Esq. and 3 other Employment Law Specialists are ready to help you
Customer: replied 8 years ago.
Thank you for your prompt response. Knowing I have never face such a situation before and have never pursued legal action against anyone before, what does a defendant use to determine what would be reasonable settlement if I was both terminated due a perceived disability and also had my privacy (HIPPA) violated when the employer shared information with one of my clients (top fortune 500 company) and they in turn sent out all the details of my medical situation across their company. Do i also have a legal ground against my former client?
To determine a reasonable settlement, besides back pay, you need to look at how long you reasonably expected to continue employment there and add up those years of salary. That would get you in the ballpark and attorneys actually use actuaries who use complex computer formulas with life expectancy and other variables. As far as suing the former client, they do not have any HIPAA obligation so they really would not be liable, it is the employer that faces liability.

If they are offering to settle on an amount, you can figure reasonably they are willing to pay at least 50%-100% more than their offer. However, if they are offering a sizeable chunk of cash in settlement, you may want to consider sitting with an attorney and an actuary to figure out an actual value.

Law Educator, Esq. and 3 other Employment Law Specialists are ready to help you
Customer: replied 8 years ago.
While I have requested my personnel file which I hope will contain the email that my client issue to their staff (the agency was cc:ed on it) as a result from a conversation with my employer who had clearly shared private medical information about me to them, they have ignored my requests. The way I found out about this email and its detailed content was because my employer called me to make me aware of it because one of my cleints contacts was going to call me to wish me welll and they didnt want me to be surprised by the call. Since then though, they've ignore my requests for the email and my file. Can I legally forced them to provide this email to me? If they delete it, can this action be added to the other charges?
If you have sent them notice that there is electronic communications that they need to preserve and they have destroyed it from the server, then they would be liable for punitive damages to you for spoiliation of electronic evidence. You can demand copies of the email correspondence by serving them with a request for discovery as part of your suit and then if they fail to provide it, you would have to get the court to compel them to do so.
Customer: replied 8 years ago.
Do private business have some sort of insurance for lawsuits of this nature like doctors have malpractice insurance? Given the nature of the lawsuit, the backpay and potential legal costs (not even including any punitive damages or front pay), we foresee this potential settlement totaling almost 1/2 of their disclosed 2008 sales. So, would they be able to pay for this amount out of their own pocket without losing their business and inevitably not paying for the settlement itself?
Some do, but it is an actual special insurance they must purchase, since normal business insurance specifically excludes discrimination claims.
Customer: replied 8 years ago.
How would one then handle this situation as again, I am looking to at least be able to get my back pay and be able to pay my legal fees at the very least
As I said in my second response, you should probable counter their offer with double what they are offering and then as they claim they cannot meet that demand only decrease about 3%-5% at a time and generally they will end up with their final offer of about 25%-35% more than they initially offered you. Also, as part of the settlement you should be looking for positive letters of reccommendation or even reinstatement to your position.
Customer: replied 8 years ago.
this is very helpful. Thank you.
Thank you.
Customer: replied 8 years ago.
We just talked to a employment lawyer and upon review of our case, evidence and personnel folder, said we had a pretty good case for ADA and HIPAA violations. However, we were confused by the following: She told us that we had to decide whether to pursue this via the EEOC or directly with my employer's lawyers. She stated that if we went to the EEOC, given the employer's lack of respect for my privacy, that bringing the EEOC into this could give them another set of information to leak to my former clients or others in this industry (i.e. that I am suing my employer). - which can add to furthering jeopardizing my career in this small industry. She seem to prefer this route nevertheless, given that my former employer has provided her with their lawfirm and it is clear that this lawfirm doesnt handle employment law - in other words, this provides further evidence to their lack of understanding to what they have violated as they clearly dont even understand that they need to hire an employment lawyer to handle this situation. Our lawyer stated that I need to decide in a couple of days whether to pursue this via the EEOC or directly with their lawyers (which means she will have to educate them into what they are facing vs. dealing with actual counterparts on this area). I am confused by the choices given to me as it sounds like either way, I have already lost - my credibility in this small industry has already been jeopardized by my employer's big mouth and them sharing that I have pursued legal action against them may make things worse - I dont see how much worse can things already get for me. I am just looking to settle this asap so I can perhaps use my settlement to start my own business and recup some of the losses I have already incurred or start a new career. Does this makes sense for an employment lawyer to direct a client?
The EEOC has to be involved if you are going to sue in federal court, since the federal court requires exhaustion of administrative remedies through the EEOC or the state commission on human/civil rights. You can only proceed directly to court in state court under the state's anti-discrimination laws, but not the federal laws.

You do not have to pursue legal action against them, even though this attorney is saying she thinks you have a good ADA case, ask her to give you a contingency contract, she won't, why because they are all good cases until you start working them. Until you get a letter from the EEOC stating "you have a right to sue and we have found probably cause regarding your claim" you reall have no "good case" as this attorney is saying. What you have is a case where the evidence you have presented should lead the EEOC to issue a probable cause letter, but do not fool yourself, even if the employer's law firm does not handle employment law, they many times get outside specialty firms involved when matters proceed beyond the intitial stages.

The attorney you spoke to is advising you about the EEOC not because she prefers it, but because you have to go that way if you are not going to settle with them. She doesn't want to settle because her only fee will be the percentage of the difference between what they have already offered you and any increase in that offer and by filing a suit, she gets to collect on the entire amount.

Thus, you need to weigh the amount of the settlement against what you think she will get you over and above the settlement.
Customer: replied 8 years ago.
She is asking to collect 25% of whatever the settlement is. Right now there hasnt been any sort of settlement offered as my former employer I dont think believes I am going to pursue this further. Knowing all the details to date, I believe the right direction is to pursue is to get the EEOC involved so that I have the actual enforcers of these laws involved. What would you advice a potential client given this type of case?
Customer: replied 8 years ago.
She is asking to collect 25% of whatever the settlement is. Right now there hasnt been any sort of settlement offered as my former employer I dont think believes I am going to pursue this further. Knowing all the details to date, I believe the right direction is to pursue is to get the EEOC involved so that I have the actual enforcers of these laws involved. What would you advice a potential client given this type of case?

The EEOC is a must to get the letter with the propbable cause ruling. Make the complaint to the EEOC, now if she offered to write your EEOC complaint and assist you with that all under the 25% contingency, that is not a bad deal. However, ask for some of her representative cases like this she has handled to see her track record.
Law Educator, Esq. and 3 other Employment Law Specialists are ready to help you
Customer: replied 8 years ago.
Thank you have always been very good at clarifying things for us.
Any time, just ask and I am glad to be of assistance. Thank you.
Customer: replied 8 years ago.
If my former employer is refusing to provide me with the email the client cc:ed them that clearly stated that they had been given all details of my medical situation by my employer - can I request legally that the client provide this to me as part of my evidence against my employer? I mean I dont understand why they are refusing to provide me with this email considering that THEY made me aware of it and told me in detail all of its contents (which was a clear description of my medical incident at my agencys' office - something neither of my client contacts were witnesses to) - so its not like they can DENY its existence.
You would have to then have an actual suit filed and request it through a subpoena or request for production. In the meantime, you need to send them a letter putting them on notice that the information they have on their computer is potential evidence in a claim and any destruction of any computer record pertaining to you or that email will be considered spoiliation and a violation of the federal electronic records preservation act. Once you have given them notice, if they destroy the information they can be hit for punitive damages and whatever they destroy can be presumed to exist as you claimed
Customer: replied 8 years ago.
My lawyer has drafted the following settlement for my case to be presented to my former employer's lawyers. I feel it is fair, however, given the damage to my career, I feel that 22-24 months is more appropriate as I look to reconsider another career path at this point - nevertheless our lawyer doesnt feel this is realistic and given that this is a negotiation I feel this settlement offer would be my very lowest offer. Do you think my thoughts of increasing the salary continuation $ to depict more 24 or 22 months rather than 18 is too much:
"(1) $117,000, representing 18 months of salary continuation (2) $17,730.99, representing 9 months of COBRA payments at the premium reduction rate and 9 months of COBRA at the regular rate; (3) $15,600, representing the maximum year-end staff bonus potential; (4) Good potential work references; (6) confidentiality agreement as it relates to disclosing these events and settlement; and (7) $50,000, representing attorney’s fees at a 25 percent contingency basis."
I think you have a great chance of getting 22, but you should ask for 24 and negotiate. Chances are you will get them to agree to somewhere between 22 and 20. I think the terms of the settlement are still pretty good. I would say tell the lawyer push for 24 and settle for the 18 if you must. Why start low? The only place it can go from there is lower.
Law Educator, Esq. and 3 other Employment Law Specialists are ready to help you
Customer: replied 8 years ago.
I thought so too. Thanks so much for your opinion. I will keep you posted. Thanks again
Thank you. Keep me up to date.
Customer: replied 8 years ago.
My lawyer is unwilling to change the terms of the settlement to be more than 18 months. She says anything higher could lead to no response. Can I then state that this is my settlement offer and if the opposite party wants to "Negotiate", I can stand firm on this settlement as is - no changes? Or does this hurt me. My lawyer is a one word answer type of person and I feel like there is no other option but to proceed as she suggests though I feel short-changed given the severity of the situation and that the assumption for their lawyers is that they can look at my proposal and minimize it -right?
Customer: replied 8 years ago.
Also, is there really no legal course I can take against my former client for creating the email that was distributed to all of my client contacts stating the details of my medical incident -ie. sue them for misrepresentation or libel?
I cannot understand why the attorney will not just go up a little bit to give her room to negotiate, but this is a professional decision she is making based upon her experience. But you realize that her making the offer of 18 months means you will end up having to take less if you negotiate.

As far as the release of your medical information, you could try an invasion of privacy suit, but these suits are fairly difficult to win as well.
Customer: replied 8 years ago.
In terms of this settlement, can I refuse to negotiate? In other words, take it or leave option?
As for the privacy issue, Why are these difficult to win if an email exists on this matter? How do individuals get any justice if the law is so difficult to prove in terms of violation?
You could refuse to negotiate, but it would be seen as not being reasonable. Then again you need to make your choice as to what you are willing to settle on.

As far as the privacy issue, the courts just look at those cases as a balance between the person's right to free speech and how they came about the information and the nature of how it was released. I didn't say you cannot win, I said they are costly to win compared to the rewards they yield.
Customer: replied 8 years ago.
I just found out through my lawyer that the company I am looking to take legal action against has fired their lawyers after receiving our settlement letter. My lawyer seems like a one sentence communicator. When I asked her what does this mean and are things going to get worse, her answer was that she had an opening next Tuesday to meet and discuss. I also found out through my former boss at that company that given her exposure to the president and his ego as to how he has been able to get away with murder in the past, she wouldnt be surprise if he is going to drag this on or refuse to get proper counsel in hopes to hault all of this process and get me frustrated enough to drop the whole thing. Can he do that? when my lawyer requested to discuss this case with his lawyers he took almost a month before she got a letter of representation from an employment law firm. My lawyer's second sentence in her email stated that we would have to move forward in filling with the EEOC which I thought she had already done given that I reviewed the letter. So, now I am scare that this company's president has purposely stalled in all aspects so that we are stalled on our end - and my filing with the EEOC may have lapsed. I was wrongfully terminated on 5/12 and my lawyer announced her representation of me in this case a week later. Since then it was maybe 3 weeks ago that we got a letter of representation from them and now this.
In essence, I am desperate and very upset. My questions are: Can this person halt the progress of my case? Can he refuse to get proper counsel in this effort and halt my case? I also been told, the email has been deleted from all computers and how long can I expect this to take given the circumstances? What are my worst and best scenarios as I am ready to wait this out as long as I have a good case and right now, I am not sure anymore
The employer can drag it on and your attorney better not have missed the filing deadling, if she did you would file a malpractice claim against her. You need to stop playing with negotiation and tell your attorney to file the complaint and that you want to proceed to court and sue as soon as you get the right to sue letter from the EEOC. This is dragging out too long and your employer has no intention of settling.
Customer: replied 8 years ago.
Paul - what is the filing deadline usually? I was wrongfully terminated on May 12.
One year is the statute of limitations.
Customer: replied 7 years ago.
Below is the recent response from my EEOC investigator - my questions are "Does this mean I have to sit in a room with these awful people and answer questions to prove my case?" and "what can they dispute when I have a written letter from the President stating that due to "security reasons and my inability to drive" that they were firing me" which is illegal given that I could get to work via public transporation and my medical issue -unless I were contagious with the bubonic plague - is not a safety issue. even the driving - I never once drove anyone to anywhere while determining what was wrong and once the second medical incident happened, I agree with my doctor to restrict driving and find alternative forms of transportation until we were able to determine what was going on. I mean can they make up "performance" issues when everything from the calls to written termination letter does not even mention performance as the reason for my dismissal?

Investigator Note below:
"Thanks for your understanding. I believe I have the information necessary to move forward with a fact finding conference for this matter. I believe a conference would be useful in a case like this one where there are significant factual disputes and where it would seem more likely than not that a conference would be a decisive step to make a determination which finding the Commission is likely to make."
Yes, it means you have to sit in the room with them. People in this country cannot simply make charges against another party and then not face them regarding those charges. This is part of the US System and the Constitutional right to face one's accuser. This is how the adversarial process works and if the EEOC feels that sitting in a converence would help clear up their decision, you have to comply. You need to show up with your attorney and all of your documentation of facts to dispute the facts presented by the employer. Your attorney will do most of the talking here anyhow.

Customer: replied 7 years ago.
Thanks for the prompt response and explanation. Given the facts of my case, what could they possibly dispute other than they think they shouldnt be penalized for firing someone based on their current medical condition - which since then has been recified and did not limit my ability to do my job. It was their fear of being embarrassed in front of their client should another incident take place in front of them. I conducted the same job for over 2 years without the need of a car at a direct competitor. They never stated any issues of performance with me and all conversations regarding my dismissal came to be about how my refusal to drive was a requirement and therefore, I was not seen as being able to carry my job. they even once mentioned my trip with the client to a tradeshow and their concern. It was clear that I am not flying the plane but as one of the partners stated "I couldnt guaranteed that I would not have a seizure in front of their client during that trip. So - can they really get away with this?
The problem is you will not know what facts the EEOC investigator is claiming are in dispute without sitting down and going through everything. I understand your frustration, it is not they are getting away with anything, but you have to follow through with and comply with the process to have any chance at moving forward with the claim.
Customer: replied 7 years ago.
I am grateful for your patience. I am sorry this is so upsetting to me as I have never had this situation before. Would I be told what they are disputing so I can make sure to bring all documentation to refute this or is it once there, I need to be prepared. What do you advice your clients when facing such meeting as I can already imagine my stress and anxiety level not just being there but having to fight for this with them first hand.
The purpose of the meeting is to get the facts out to dispute them, so ask the investigator what facts are in dispute so you can make sure you bring your proof. Most times they tell people to just bring everything they have with them. The only thing I tell my clients is to let me do the talking, since I go with them, and we keep the discussion centered on the facts that the employer is presenting and showing our facts that either the employer is lying or the facts are simply not part of the issue. This is also why you should be using your attorney for this, to reduce your stress level.

Law Educator, Esq. and 3 other Employment Law Specialists are ready to help you