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In one case, the lawmaker and staff member independently denied the existence of an affair and said close working relationships that are routine at the Capitol can be easily misconstrued. The former senator said he regularly gave the staff member rides to and from the Capitol to spare her parking fees and to provide safe transportation after late-night shifts.
Employment law experts caution that allegations involving differing circumstances are viewed skeptically — if they are admitted as evidence at all at trial. Attorneys commonly spar over what information produced in the discovery phase is allowed at trial, and whether Brodkorb's examples involve similarly situated affairs will be up for debate as the case progresses.
There is little evidence to prove the affairs in the filing, though Brodkorb's attorneys could provide more details as the case goes on. "Discovery is continuing," the filing said.
Stephen Befort, an authority in employment law at the University of Minnesota Law School, said Brodkorb could find a discrimination claim more difficult to make if the other examples he cites vary widely from the lead-up to his own firing or happened under previous Senate regimes.
"I think it weakens the claims if it's not identical circumstances," Befort said. He added that the dated nature of some of Brodkorb's examples could also undermine his case. "The closer you are both in time and circumstances, the stronger the discrimination claim."
Beth Brascugli De Lima, president of California-based human resources firm HRM Consulting Inc., pointed out that employee codes of conduct could have evolved over time. She also said that the close connection between a supervisor and employee matters in workplace relationships because closer proximity can expose an organization to sexual harassment actions.
Yet employment lawsuits like Brodkorb's are rare enough that older cases or those that aren't identical could be valuable, said David Larson, an employment law scholar at Hamline Law School in St. Paul.
"As long as the facts are roughly analogous, they can be very helpful to the plaintiff," he said. However, Larson also stressed that those alleging employment discrimination have a high legal bar and "it remains extremely difficult to prove."
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