Affirmative defenses and how to beat them

Why this matters

Employers often answer a claim with a long list of one-line defenses. "Failure to mitigate." "Same decision." "Good faith." "After-acquired evidence." "Waiver." Many of these have no facts behind them when they are written. Some are real and can cut your damages or end a claim. You need to know which is which, who has to prove each one, and how to make the employer show its hand before the hearing.

This is a reference page. Chapter 5 covers discovery in general, Chapter 9 covers motions, and Chapter 12 covers damages.

This is general information, not legal advice.

What an affirmative defense is

A denial says "that did not happen" or "you cannot prove it." An affirmative defense says "even if you prove your case, something else defeats it or reduces it." Because the employer is raising a new matter, the employer usually has to plead it and prove it.

The federal model is FRCP 8(c)(1). It says a party "must affirmatively state any avoidance or affirmative defense," and lists examples such as estoppel, payment, release, statute of limitations, and waiver. New York's version is CPLR 3018(b). It requires a party to plead "all matters which if not pleaded would be likely to take the adverse party by surprise," and gives a similar list, including payment, release, and statute of limitation.

Sort the list before you do anything

An employer's list usually mixes four kinds of items. Sorting them tells you where to spend your time.

1. True affirmative defenses, where the employer carries the burden. Examples are failure to mitigate, after-acquired evidence, the good-faith reduction of FMLA liquidated damages, payment or offset, release, and undue hardship.
2. Denials dressed up as defenses, where you still carry the burden. "Legitimate non-retaliatory reason," "no causation," and "no willfulness" belong here. You do not strike these. You beat them with evidence of pretext.
3. Pure legal arguments, such as "fails to state a claim" or a damages cap under one statute. These get answered in a brief, not in discovery.
4. Reservations, such as "we reserve the right to add defenses." These are not defenses at all. Ask the arbitrator to set a date after which nothing new can be added.

Write each defense on one row of a table. Add columns for who has the burden, what facts the employer has given, and what you have that answers it. Update it as discovery comes in.

Who has to prove what

At trial or hearing, the employer generally carries the burden on its affirmative defenses. New York's highest court put it simply in Manion v. Pan American World Airways, 55 N.Y.2d 398, 405 (1982): "The party asserting an affirmative defense generally bears the burden of proof on that issue."

Here is how that plays out for the defenses you are most likely to see.

The employer having the burden is a real advantage. It means a defense with no evidence behind it should fail at the hearing, even if no one ever moved to strike it. Your job is to make sure the record shows there is no evidence.

In arbitration, the employer may never write its defenses down

This surprises many people. Under AAA Rule R-5(a), the employer "may" file an answer. It does not have to. Under R-5(c), if no answer is filed within 14 calendar days, "the AAA will assume that the respondent does not agree with the claimant's claim," and the case moves forward. The AAA employment rules say nothing about what an answer must contain or about affirmative defenses.

JAMS is different. JAMS Employment Rule 9(a) requires each party to give notice of its "claims, affirmative defenses or counterclaims," and says "any such notice shall include a short statement of its factual basis." It adds that no affirmative defense "will be considered by the Arbitrator in the absence of such prior notice," unless the arbitrator finds no party was unfairly prejudiced or all parties agree. That is the closest the AAA and JAMS employment rules come to "state your defense and its facts, or lose it." If your case is at JAMS, quote Rule 9(a) when you ask for the facts behind a defense.

Because the rules may not force the issue, you have to. The next section gives you the tools.

Tools to make them show the facts

Contention interrogatories

A contention interrogatory asks the other side for the facts behind a position it has taken. For each defense, ask for the facts, the people with knowledge, the documents, and the dates the employer relies on. Keep one defense per interrogatory, and number them to match the employer's list.

Employers often object that these questions are "premature." The federal model rule answers that. FRCP 33(a)(2) says an interrogatory "is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact." The rule does let a court order that the answer wait until later in discovery, but that takes an order. An employer that wants to wait has to ask the arbitrator. It cannot simply refuse.

In New York courts, CPLR 3131 says interrogatories "may relate to any matters embraced in the disclosure requirement of section 3101," which covers matter "material and necessary in the prosecution or defense of an action." Court rules are models in arbitration. Under AAA Rule R-21(a), the arbitrator manages the exchange of information, including interrogatories, while "safeguarding each party's opportunity to fairly present its claims and defenses." Cite that rule first.

Two practical points help.

• Use the same wording the employer used in its own requests to you. If it asked you to "state all facts supporting your contention that," it is hard for it to call that wording improper when you use it.
• Read every answer closely. Note the date of any answer that gives no facts for a defense.

Chapter 16 covers the "premature contention interrogatory" objection and its answers in more detail.

Terms in the scheduling order

An order gives you something to enforce. A specific order is easier to point to than a general rule, and some sanctions rules turn on whether an order was broken (Chapter 9). When the parties build or revise the schedule, ask for these two terms. They cost little and they bind both sides.

1. A cutoff for supplementing answers. Supplemental or amended interrogatory answers are due by the close of discovery, and later changes need good cause. Check your own answers first, because this binds you too.
2. A statement of defenses. Each side serves a list of the defenses it will actually pursue at the hearing, at the same time as the witness and exhibit lists. Anything not listed is withdrawn.

Asking a court or arbitrator to remove a defense

New York courts have a rule for this. CPLR 3211(b) says "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit."

Many people remember this rule as "make them prove their defenses or they get thrown out." That is only half right. On the motion, the burden is on you, the party asking. The court reads the defense in the employer's favor.

• In Greco v. Christoffersen, 70 A.D.3d 769, 771 (2d Dep't 2010), the court said the party moving to strike "bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law.'"
• In Mazzei v. Kyriacou, 98 A.D.3d 1088, 1089 (2d Dep't 2012), the court repeated that a court "must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference."

The defenses most likely to go are bare labels with no facts.

• In Bentivegna v. Meenan Oil Co., 126 A.D.2d 506, 508 (2d Dep't 1987), defenses that said only "waiver and estoppel" and "accord and satisfaction" were struck. The court, repeating an earlier decision, said "[d]efenses which merely plead conclusions of law without supporting facts are insufficient." It still let the defendant replead.
• In Robbins v. Growney, 229 A.D.2d 356, 358 (1st Dep't 1996), the court said "The bare legal conclusions are insufficient to raise an affirmative defense."
• But a defense can survive when facts elsewhere in the answer give notice. In 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 542 (1st Dep't 2011), the defense stayed in for that reason. The court also said "A defense should not be stricken where there are questions of fact requiring trial."

New York's particularity rule, CPLR 3013, adds support. Pleadings must be particular enough to give notice of the events "intended to be proved and the material elements of each cause of action or defense."

Federal courts use FRCP 12(f), which lets a court "strike from a pleading an insufficient defense." Timing matters. A party's own motion must come before responding to the pleading or, if no response is allowed, "within 21 days after being served." After that, the court may still act on its own. In GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 98-99 (2d Cir. 2019), the Second Circuit held that the plausibility standard "applies to determining the sufficiency of all pleadings, including the pleading of an affirmative defense," and that the defendant "needed to support these defenses with some factual allegations to make them plausible." The court also said the standard is "context-specific" and noted a defendant has only a short time to answer, so expect some leeway.

Other states have their own tools. These were checked against each state's official text, but not against how courts apply them.

Check your own state's rules on its official site. Florida and New Jersey have similar rules, but their official text could not be opened for this guide.

What this means in arbitration

There is no AAA rule for striking a defense. A motion to dismiss or strike counts as a dispositive motion, and AAA Rule R-32(b) allows one "only if the arbitrator determines the moving party has shown that the motion is likely to succeed and to dispose of or narrow the issues in the case." R-32(c) also tells the arbitrator to weigh "the time and cost associated with the briefing." JAMS Rule 18 sets the same "likely to succeed and dispose of or narrow the issues" test.

That is a hard gate. Even in court, a winning motion may only let the employer fix the defense, as in Bentivegna. A motion that loses can also cost you goodwill. In most arbitrations the better plan is to starve the defense rather than attack it.

1. Ask for the facts with contention interrogatories.
2. Get the supplementation cutoff and the statement of defenses into the order.
3. At the final conference or in your pre-hearing brief, point to the employer's own answers and ask the arbitrator to hold it to them.
4. At the hearing, remind the arbitrator that the employer carries the burden on each defense it kept.

A court rule such as CPLR 3211(b) or FRCP 12(f) is still useful in arbitration as a model. You can cite it to show that bare labels are not treated as defenses in court either.

The common defenses, one by one

Failure to mitigate

The employer must show you did not make reasonable efforts to find comparable work. In federal court it is "the defendant who has the evidentiary burden of demonstrating at trial that a plaintiff has failed to satisfy this duty" (Dailey v. Societe Generale, 108 F.3d 451, 456 (2d Cir. 1997)).

Your evidence is a job search log, application confirmations with dates, interview records, offers and why you turned any down, and any work you took. Start the log the day you lose your job. If there is a gap, be ready to explain it honestly. Reasonable effort is the standard, not perfection.

Ask the employer to identify the comparable jobs it says you should have found and every fact showing a lack of effort.

After-acquired evidence

The employer claims it found misconduct after firing you that would have led to firing anyway. It must prove that the misconduct alone would have led to termination. Ask for each item of misconduct, the date the employer learned of it, the policy it broke, and who made that finding. Ask how the employer treated other employees who did the same thing.

If the employer cannot name anything, do not spend deposition time inviting it to find something.

Same decision

The employer says it would have made the same decision even without your leave or complaint. Your evidence is timing, shifting explanations, comparators treated better, documents created only after your leave or complaint, and skipped steps such as warnings or coaching. Test this defense in the depositions of the people who made the decision (Chapter 17 has questions).

Good faith and liquidated damages

For FMLA liquidated damages, the employer must prove good faith and reasonable grounds. Ask what training the decision-makers had, what policies they followed, and what they knew when they acted. Their own emails often answer this better than their testimony.

If the employer relies on its lawyers' advice as a defense, that can open those communications to discovery. Ask the arbitrator how to handle it.

Blaming an outside leave administrator

Some employers say a third-party vendor caused the problem. The FMLA regulations say the employer is "responsible in all circumstances for designating leave as FMLA-qualifying" (29 C.F.R. 825.300(d)(1)). Ask what the vendor told the employer and when, who at the company saw it, and what the company did with it. Ask whether the employer blames any third party, and on what basis.

Check every statement you make about who caused a problem against the documents.

Failure to exhaust and statute of limitations

These are often placeholders. Ask which step you supposedly skipped, or which claim is supposedly late, and the dates the employer relies on. Then check your own deadlines on day one. An arbitration agreement does not stop agency deadlines (Chapter 1).

Payment, offset, and reduced recovery

The employer must prove what it paid. Your evidence is pay and benefit records and your own timeline of work and leave. Be careful with any argument that you were unable to work during some period. Pressing that point can invite requests for medical records (Chapter 7).

Undue hardship and the interactive process

For undue hardship, ask for the cost of the accommodation, the resources the employer had, and the alternatives it actually considered. For a claim that you broke down the interactive process, ask for the dates, the people involved, what was offered, and what you supposedly did. Word your own questions with care. A question that turns on your condition or your accommodation needs can pull your medical history into the case. Keep your questions tied to what the employer did and believed.

Waiver, estoppel, and release

These need specific facts, such as a signed release or a statement you made that the employer relied on. Ask for the document or the statement. A bare "waiver and estoppel" line is exactly the kind of defense New York courts have struck as a legal conclusion with no facts.

"Fails to state a claim" and damages caps

These are legal arguments. Answer them in a brief. In New York, the Second Department has held that no motion lies under CPLR 3211(b) to strike a "failure to state a cause of action" defense (Mazzei, 98 A.D.3d at 1089), so do not spend a motion on it. A damages cap in one statute usually limits only the claims under that statute, so read each law separately.

Checklist

• Put every defense on one row of a table, sorted into true defenses, denials, legal arguments, and reservations.
• Mark who has the burden on each one, with the source.
• Serve one contention interrogatory per true defense. Use the employer's own wording where you can.
• Answer a "premature" objection with FRCP 33(a)(2) and your arbitration rule on information exchange.
• Ask for a supplementation cutoff and a statement of defenses in the schedule.
• Read every answer. Record the date of any answer that gives no facts.
• Decide whether a motion is worth it under R-32 or JAMS Rule 18. Usually the answer is no.
• Before the hearing, list each remaining defense and the employer's evidence for it. Remind the arbitrator who carries the burden.

Check your state

• How your state's courts treat a defense that is only a legal label, and whether they allow it to be repleaded.
• The deadline for a motion to strike or dismiss a defense. Some rules, such as FRCP 12(f), have short windows.
• Who carries the burden on mitigation and same decision under your state's employment laws.
• Whether your state has a rule like New York's CPLR 3013 on pleading defenses with particularity.
• Whether your arbitration agreement adopts any court rules. If it does, those rules may give you more tools than the arbitration rules alone.

Back to Chapter 9, Disputes and motions.

Sources

• AAA Employment/Workplace Arbitration Rules (R-5 answers, R-21 exchange of information, R-32 motions)
• JAMS Employment Arbitration Rules (Rule 9 notice of defenses, Rule 18 dispositive motions)
• New York CPLR 3211 (motion to dismiss a defense)
• New York CPLR 3018 (matters that must be pleaded)
• New York CPLR 3013 (particularity)
• FRCP 8 (pleading defenses)
• FRCP 12 (motion to strike an insufficient defense)
• FRCP 33 (contention interrogatories)
• 29 U.S.C. 2617 (FMLA remedies, good-faith reduction)
• 42 U.S.C. 12112 (ADA reasonable accommodation and undue hardship)
• 42 U.S.C. 12111 (ADA definition of undue hardship)
• California Code of Civil Procedure 430.20 (demurrer to an answer)
• Illinois 735 ILCS 5/2-615 (motions attacking pleadings)
• Texas Rules of Civil Procedure (Rule 90, waiver of pleading defects)