What Are the Risks of Filing an Employment Lawsuit in New York?

Thinking about suing your employer in New York?

Learn the risks of filing a sexual harassment, discrimination, retaliation, or other employment lawsuit, including dismissal, discovery, trial, and settlement.

A strong employment claim can still face dismissal, discovery, summary judgment, trial risk, and post-trial challenges. Employees should understand the entire path before deciding what to do.

By William K. Phillips, Founder and Managing Partner, Phillips & Associates, PLLC. Written and reviewed for legal accuracy. Published September 2026. Last reviewed September 2026.

If you experienced employment discrimination, sexual harassment, or retaliation, you may have strong evidence: documents, text messages, witnesses, or a clear timeline. Those facts matter. But even a strong employment case should be evaluated carefully before a lawsuit is filed.

Our goal is to help you obtain the most money possible, with the least amount of risk, in the shortest reasonable period of time. Filing a lawsuit is a means to that end, not the objective itself. We evaluate the strengths and weaknesses of the claim, the evidence that exists now, the evidence we are likely to obtain from the employer, the potential defenses, the value of the case, and the risks at each stage before recommending a strategy.

Our litigation reputation can also create leverage before a lawsuit is filed. Employers, defense lawyers, and insurance companies know that we litigate cases, oppose dispositive motions, take cases to trial, and handle appeals. That experience can help resolve matters privately and confidentially before filing when an appropriate resolution is possible.

Filing also changes the nature of the dispute. A filed lawsuit is generally a public proceeding. Before filing, you and your lawyer should consider whether the potential benefits of litigation outweigh the added exposure, time, and risk. When filing is necessary, the case should be prepared with the expectation that it may need to survive discovery, summary judgment, trial, and appeal.

We evaluate these risks not to discourage valid claims, but to avoid putting a client in a worse position than when they came to us, and to make informed decisions about when to negotiate, when to file, and when to keep litigating.

Important: The percentages discussed below are historical benchmarks, not predictions of what will happen in your case. The studies involve different courts, years, motions, and groups of cases. Your evidence, witnesses, damages, legal claims, judge, venue, and the employer's defenses all matter.

What Should Employees Know Before Filing?

Employees can face several hurdles after filing an employment lawsuit. A case can be dismissed or weakened at different stages: before discovery, after discovery on summary judgment, at trial, or on appeal. Understanding those risks in advance helps you and your lawyer make better decisions about when to file, what evidence is needed, when to negotiate, and when continuing the case makes sense.

• A lawsuit becomes public. Once a case is filed, the complaint and many later court filings are generally available to the public. Before filing, an experienced employment lawyer should consider whether your goals can be achieved privately and confidentially, and whether filing will create leverage or unnecessary risk.
• A complaint must be strong enough to survive the early stages. An employer may ask the court to dismiss some or all of the claims before discovery. Careful factual investigation, claim selection, and drafting at the outset can affect whether you ever reach the employer's internal emails, investigation files, records, and testimony.
• Discovery applies to both sides. Discovery can give you evidence that was previously inside the company, including emails, messages, personnel records, and testimony from supervisors and human-resources personnel. The employer can also seek relevant information from you and question you under oath. Preparing for that process is an important part of protecting the case.
• Summary judgment is a critical stage. After discovery, the employer may ask the judge to dismiss the case without a trial. The evidence developed during discovery, witness testimony, documents, consistency, and the employer's explanation can all affect whether the case proceeds.
• Trial is available when a fair resolution cannot be reached, but it carries risk. Relatively few filed employment cases reach a verdict. When trial is necessary, you should have counsel with real experience litigating sexual harassment, discrimination, and retaliation claims through motions, depositions, trial, and appeal.
• A verdict may not be the final number. Post-trial motions and appeals can reduce damages, overturn parts of an award, or require additional proceedings. That possibility should be weighed when evaluating a settlement offer before trial.
• Settlement can be a successful result. A settlement offer should be compared against a realistic range of possible outcomes, not against an imaginary guaranteed verdict, weighing value, risk, time, expense, privacy, collectability, career effects, and the personal burden of continuing. The aim is to push the offer high enough that accepting the money now becomes a genuinely difficult choice against the risk of continuing.

Can My Case Be Dismissed Before I Obtain the Employer's Evidence?

Yes. An employer may respond to a complaint by arguing that, even if the facts you alleged are accepted as true, they do not state a legally sufficient claim. At this stage, the judge is usually not deciding who is telling the truth. The question is whether the facts pleaded in the complaint plausibly satisfy the law.

This can be especially frustrating when you believe the best evidence is inside the company. A case may be dismissed before you obtain internal emails, messages, investigation files, disciplinary records, or deposition testimony.

A 2018 Bloomberg Law analysis of employment rulings in the Eastern District of New York reported complete dismissal on 48.9% of the early dismissal motions it reviewed. That does not mean every employee who files in that court has a 48.9% chance of losing. It means that, among the motions Bloomberg analyzed, early dismissal was common and outcomes varied substantially among judges.

The complaint matters. The claims selected, the facts included, the timeline, the governing law, and the court where the case is filed can affect whether an employee ever reaches discovery.

What Happens to Me During Discovery?

If the case moves into discovery, both sides exchange evidence. You may obtain company emails, personnel records, investigation files, and other internal documents, and your lawyers may question supervisors, human-resources personnel, and witnesses under oath. But discovery works both ways. The employer will also seek information and documents from you.

You may sit for a deposition that lasts several hours. The defense may compare your testimony with emails, texts, calendars, prior complaints, social-media activity, performance reviews, and earlier statements. They may ask who you spoke with about the case, whether you used ChatGPT or another AI tool to discuss or analyze the dispute, and, when legally appropriate, seek relevant records or testimony from third parties.

Lost wages will be examined closely. If you earned $100,000 a year and were unemployed for a year, you may initially claim roughly $100,000 in lost wages. But the employer may argue that you failed to reasonably mitigate those damages by looking for comparable work. If your records show only 12 job applications during that year, the defense may argue that one application per month was not a reasonable job search and ask the court to reduce the lost wages you can recover. We tell clients to make a genuine effort to find appropriate work and to keep detailed records of applications, interviews, offers, and other job-search activity.

Emotional-distress damages can also open the door to personal questions. If you claim that sexual harassment, discrimination, or retaliation caused significant emotional distress, the defense may seek relevant medical or mental-health records and explore whether other events may have contributed to that distress. They may ask about the loss of a loved one, a divorce or breakup, prior mental-health treatment, substance use, or other significant events in your life. Depending on the claims, defenses, privileges, and circumstances, the defense may also seek relevant communications with certain non-medical third parties.

None of this is a reason to avoid a valid claim. It is a reason to understand what discovery can involve and to work with lawyers who prepare you for it. Part of protecting you is identifying these issues before the defense does, preparing you for difficult questions, preserving the evidence needed to support the claim, and continually evaluating whether the potential recovery justifies the added time, burden, and risk of continuing.

Can My Employment Case Be Dismissed After Discovery?

Yes. After the evidence has been exchanged, the employer may move for summary judgment, arguing that the record contains no genuine factual dispute requiring a trial. If the motion succeeds completely, the case ends without a jury deciding it.

In the same Bloomberg Law analysis, 56.7% of the employment-related summary-judgment motions reviewed resulted in complete dismissal. A separate 2017 Lex Machina analysis used a different denominator and reported that employers prevailed on summary judgment in about 13% of nearly 72,000 federal employment cases. The two percentages should not be blended: one measures outcomes among a set of decided motions in EDNY, while the other measures summary-judgment wins as a share of a much larger pool of filed federal cases.

By summary judgment, credibility and detail matter. Contemporaneous documents, consistent dates, comparator evidence, proof of who knew what, the employer's stated reasons, mitigation, and the connection between the conduct and the claimed harm may determine whether the case reaches trial.

How Often Do Employees Win Employment Discrimination Trials in New York?

In one seven-year study of employment-discrimination jury verdicts in the Southern and Eastern Districts of New York, compiled by Professor Vivian Berger, employees won about 30% of the cases that reached a jury verdict. But fewer than 4% of filed employment cases in those courts reached a verdict at all. The 30% figure does not mean an employee who files has a 30% chance of winning; most filed employment cases never reach a verdict.

Berger's dataset included 160 employment-discrimination jury verdicts: employees won 48, defendants won 108, and four were mixed. Employees won about three out of ten cases that reached a jury, while defendants took the verdict in roughly two out of three.

The often-repeated 1% figure from the 2017 Lex Machina analysis answers a different question. Plaintiff trial victories represented about 1% of all federal employment cases in that database, most of which never went to trial. It does not mean employees won only 1% of the trials that actually occurred.

Time is also part of the risk. Berger's study reported an average of 32 months from filing to verdict. Lex Machina's 2026 report stated that employee claims reaching trial from 2023 through 2025 took a median of 1,021 days. Post-trial motions, appeals, and collection may take additional time.

We have tried more than 12 employment cases. We have won trials, and we have lost trials. That experience matters when we advise you about whether to accept a settlement or continue to trial, because we understand firsthand both the potential rewards and the risks of putting a case before a jury.

Can a Judge Reduce an Employment Discrimination Verdict?

Yes. Winning at trial does not always end the case or fix the final amount you will recover. The defense may seek judgment as a matter of law, a new trial, remittitur, or appellate review.

We saw that risk directly in Sooroojballie v. Port Authority of New York and New Jersey. A jury awarded $2.16 million in compensatory damages and $150,000 in punitive damages. The Second Circuit affirmed liability and the punitive award but directed a remittitur of the compensatory damages to $250,000. The employee kept the win on liability, but the amount of the recovery changed dramatically.

We have seen the uncertainty of trial more recently as well. In a federal employment case, we obtained a jury verdict of more than $400,000 for our client. The court later ordered a new trial, and we are currently challenging that ruling. A jury verdict can be an important victory without being the end of the litigation.

A lawyer should not value a case by looking only at verdict headlines. The verdict, the legally supportable award, the likely post-trial result, the time required, and the ability to collect are different questions.

Why Do So Many Employment Cases Settle?

Employment cases often settle because both sides face risk. You face the uncertainty, time, expense, privacy concerns, and personal burden of litigation. The employer may face significant legal fees, management time, potential exposure, reputational risk, and the possibility that the cost of defending the case will exceed the amount for which it could reasonably be resolved. Settlement is often about weighing those competing risks and reducing uncertainty for both sides.

The 2017 Lex Machina dataset reported that approximately three-quarters of the federal employment cases analyzed settled. That does not tell us whether those employees would have won or lost at trial. Many employment settlements are confidential, and the public cannot see what evidence the parties exchanged, what defenses existed, or what risks drove the agreement.

Settlement is not automatically a compromise of principle or a sign that your case is weak. A good settlement can provide meaningful compensation sooner, protect your privacy, reduce the risk of dismissal or a defense verdict, and give you more control over the outcome.

Every settlement decision requires weighing the potential upside of continuing against the added time, cost, burden, and uncertainty. The aim of negotiation is to push the offer high enough that the decision to settle becomes genuinely difficult.

For example, if the evidence and risks lead us to believe a case has a realistic value of about $100,000 and the employer offers $85,000 or $90,000, that calls for a serious discussion. Can we push the employer higher? How much more might reasonably be gained? What added time and risk would you take on by continuing? At that point, there may be no obvious answer.

If the employer is offering $20,000 on the same case, the decision may be much easier. The offer may simply be too far below a reasonable assessment of the case to justify settling then.

A responsible settlement analysis compares the actual offer with a realistic range of possible litigation outcomes. It should account for the probability of success, likely damages if successful, the risk of dismissal or losing at trial, the time involved, litigation expenses, collectability, privacy, career effects, reputational considerations, and the personal burden of continuing.

The decision belongs to you. Our job is to give you the information, experience, and judgment needed to understand the choices, reduce avoidable risk as much as possible, and make an informed decision.

What Can I Do to Reduce Avoidable Risk?

Preserve evidence lawfully. Keep relevant texts, emails, calendars, job-search records, and social-media content. Do not delete or alter evidence, and do not take privileged or confidential company material you are not entitled to possess.

Write an accurate chronology while events are still fresh. Record dates, participants, exact words, complaints, witnesses, and changes in treatment. If you are unsure about a date or detail, say so. Specific, accurate facts are more useful than broad conclusions.

Do not exaggerate or guess. Credibility can be decisive in an employment case, particularly in sexual harassment cases where the parties may sharply dispute what happened. Inconsistencies, exaggerations, and false statements can seriously damage an otherwise strong case.

Do not hide information from your lawyer. Tell your attorney the good facts and the bad ones. One of the most damaging things that can happen in an employment case is for important information to surface for the first time in documents, a deposition, or cross-examination. If your legal team knows about a problem from the beginning, they can evaluate it, investigate it, and address it as part of the strategy. It is far harder to repair the damage after the defense finds it first.

Continue looking for work when appropriate. Your efforts to reduce lost wages may affect damages. Keep a record of applications, interviews, offers, and replacement income.

Be careful with social media and AI tools. Assume that public posts and relevant electronic searches or communications may be requested or reviewed during litigation. A photograph does not necessarily tell the whole story, but the defense may still try to use it against you. If you are claiming significant emotional distress and post a photo of yourself smiling, celebrating, or drinking champagne, the employer may argue the image is inconsistent with the harm you described. Do not post about the dispute, and do not use an employer-owned device or account to seek legal advice.

Be honest about medical and emotional harm. If those damages are part of your case, tell your lawyer about your treatment, prior history, and the records that may become relevant before the employer asks for them. Surprises are much easier to address before the defense discovers them.

Choose experienced employment counsel with a real litigation record. If your case involves sexual harassment, employment discrimination, or retaliation, look for lawyers who actually litigate those claims in court, not lawyers who primarily send demand letters and settle before litigation. Ask about their experience with motions to dismiss, discovery, depositions, summary judgment, trials, verdicts, post-trial motions, and appeals. A lawyer evaluating your case should understand what can happen at every stage and be prepared to continue if the employer refuses to resolve it fairly. Learn how to choose a sexual harassment lawyer in New York.

How Should an Employment Lawyer Evaluate My Case?

A good employment lawyer should evaluate more than whether what happened was unfair or whether a legal claim exists. The evaluation should address the evidence available now, the evidence likely to exist inside the company, conflicting documents, witness credibility, damages, mitigation, likely defenses, the governing law, the venue, the assigned judge, the employer's resources, and your goals.

The evaluation should also change when the facts change. A document produced in discovery, a witness deposition, a new defense, a medical record, or a ruling from the court may strengthen or weaken the case. Case valuation is a continuing process, not a number fixed during the first consultation.

Why Litigation Experience Matters

We represent employees only. We combine the resources of a substantial plaintiff-side employment practice with partner-led, boutique-style representation. We have handled more than 9,500 employment matters, litigated approximately 2,000 cases in court, and recovered more than $360 million for employees. Our attorneys have appeared before more than 110 United States District Judges and more than 70 United States Magistrate Judges.

We also use a proprietary case-valuation database designed and developed by our Founder and Managing Partner, William K. Phillips, a former investment banker. The database tracks our resolutions and relevant factors such as the underlying facts, claims, employer, defense counsel, courthouse, judge, and outcome. It lets our attorneys compare a current matter against actual cases we have handled, including confidential resolutions that are not available in public verdict databases or ordinary internet searches.

Case evaluation here is collaborative. Multiple partners and attorneys review the facts, risks, and potential value of a matter, drawing on our litigation experience and case data, and that evaluation continues as the case develops. The potential value, risk of dismissal, cost and burden of litigation, and risks and benefits of settlement are reassessed as new evidence emerges, defenses develop, and the case moves through each stage.

These figures do not predict what will happen in your case. From the beginning, we evaluate not only the strength and potential value of a claim, but also what you may face along the way: a motion to dismiss, discovery, summary judgment, trial, and appeal.

The Bottom Line

Filing an employment lawsuit may be the right decision. Resolving a claim before filing may also be the right decision. The answer depends on the evidence, the available claims, the damages, the employer's response, the risks at each stage, and what you want to accomplish.

You deserve an honest assessment before committing years of your life to litigation. The goal is to put you in a better position, not a worse one: identifying the strengths of the case, the weaknesses the defense will attack, the evidence needed, the possible outcomes, and the practical cost and risk of pursuing them, so you can make an informed decision about what is best for you.

If you are considering a sexual harassment lawsuit, discrimination claim, retaliation claim, or other employment case, call (866) 229-9441 or contact us online for a confidential consultation and evaluation of your options, including the potential risks and benefits of litigation.

We represent employees only and handle employment matters on a contingency-fee basis. No attorneys' fees are owed unless there is a recovery. Prior results do not guarantee a similar outcome.