Once you have reached that point, it's almost moot whether or not the plaintiff will win, as lawsuits are sufficiently headache inducing and expensive that a settlement is likely.

The odds of the above happening might be low, but being made aware of the possibility causes employers to CYA more than you might think in an at-will state.

Lawyers tell management this and get blamed for the law and courts being the way hey are. “Buy them out with a severance and a release” gets “why should I pay for something I’m allowed to do.” A few months later in house counsel gets screamed at “why is outside counsel charging us $50,000 for this summary judgment case?!”

“Well, I told you that——-“

“This is your fault! Why doesn’t EPLI cover it”

“You said it was too expensive, so we got the one with the high deductible.”

Since the defense bar also lines their pockets with these cases, and scare pieces on their blogs “review your employee handbook now or else!” No one fixes anything.

And in the U. S., anyone can sue anyone at any time with no reason (though there should be some semblance of a reason, or good luck finding counsel to take the case). Maybe you fired me because I'm black, maybe you didn't, but without any documentation of what the real reason was, the company stands a good chance of settling to avoid the time in court.

Judges hate this be careful. If you sue for "not enough ham in your subway sandwich" - I would bring overnight clothes and a toothbrush. Contempt of court is a thing. Judges hate time wasters.

And you can't just gather those reasons for employees in protected classes or that itself is discriminatory treatment of employees.

So you have to make a choice as a large company: PIP systems or set aside more money for legal fees and settlements. Most opt for the former.

Better documentation means only increasingly bottom feeding plaintiffs lawyers will take the case.