Employment Discrimination - In Re Burlington Northern, Inc.: Self-Critical Subjective Analysis Privilege under Title VII Discovery

Abstract

INTRODUCTION|"Self-critical subjective analysis" is a privilege raised as a justification to resist discovery of an employer's self-evaluation of its employment practices and policies established under an affirmative action plan. In the purview of employment discrimination, public policy favors confidentiality of certain self-evaluative information over the need of a private litigant to obtain discovery. However, privileges are not absolute. Courts have held that if the benefit from resolution of the suit outweighs the potential injury to a party from whom discovery is sought, disclosure is required. While some courts have recognized the self-critical subjective analysis privilege, others have held that the privilege "at the most remains largely undefined and has not generally been recognized...