Author: Alan Rupe

Dressed in their Sunday best, everyone leaned forward to hear the words: “The envelope, please.”

Anticipation grew. Who would win and who would lose? The room was hushed. The envelope loomed large in the announcer’s hand. “And the winner is …”

This could be a scene from the Academy Awards. Or it could be a scene from any courtroom in the country, any day of the week. Actors who receive an Oscar are honored for their behavior on-screen. Employer-defendants who receive a jury verdict in favor of a plaintiff are also recognized—for their bad behavior in the workplace.

Here, in no particular order, are this year’s nominees for the Awfuls—my Bad Boss Behavior of the Year Award.

First: American Apparel CEO Dov Charney, noted for his role in the lawsuit Mary Nelson v. American Apparel, Inc., et al. Mr. Charney often referred to women as “sluts.” He testified, however, that “some of us love sluts. … It could be also an endearing term.” Mr. Charney is also nominated for posting a video on his company Web site showing him running around in his underwear in the workplace. The video was later removed from the site, but someone (here’s a surprise) saved a copy. Charney’s defense to the claims of sexual harassment? None of his conduct or speech was directed at the plaintiff because of her gender; he wore his underwear in the presence of employees to test “product fit,” and plaintiff was not treated any differently from male employees.

Next up is the judiciary’s contribution in 2007: Judge W. Kennedy Boone of Washington County, Maryland, Circuit Court, who christened three African-American female public defenders appearing in his courtroom “The Supremes.” Judge Boone suggested the three women wear matching gold sequined miniskirts and “shake their groove thing.” Judge Boone encouraged the criminal defendant accused of assault and cocaine possession to get “an experienced male attorney.” Judge Boone has received one award already: He was reprimanded by the Maryland Commission on Judicial Disabilities.

Our next nominee is a group performance: Alarm One, a California alarm-sales company, and two supervisors. Most of the employees in the company’s Fresno office were 18 to 25 years old. Plaintiff Janet Orlando was 52. The supervisors held a meeting every morning before the field supervisors and the sales team left for a day of selling alarm systems door-to-door. The meetings had a pep rally atmosphere with yelling, chanting and cheering. Motivational techniques used at the morning meetings included passing out bonuses, singing in front of the group, pies in the face, eating baby food, wearing diapers and spanking with Alarm One and its competitor’s yard signs. Employees were spanked for arriving late or for losing a sales competition.

On January 14, 2004, Janet Orlando was spanked and sustained a cut and a bruise. She filled out an injury report and was taken to the doctor. Alarm One’s defense? Orlando was not injured; she never reported the injury; and she never sought medical care. The verdict was in Orlando’s favor, and the jury awarded her $500,000 in compensatory damages against the company and the two supervisors, plus $1 million in punitive damages. (An appeals court sent the case back to the trial court because of a judge’s erroneous jury instruction, but defense costs continue.)

Former Kansas Attorney General Paul Morrison also gets a nod. In a year in which Kansas experienced floods, tornadoes and damaging winter storms, Morrison, a member of the American College of Trial Lawyers and once described as a “poster boy for a Kansas Democratic Party on a roll,” stands out for his role in the two-year-plus sexual relationship he had with Linda Carter, an administrator in the Johnson County District Attorney’s Office.

Morrison and the administrator had sex in the Johnson County Courthouse many times, including the day before he was sworn in as attorney general, as well as on business trips together across the country. At one point, Morrison bought Carter a ring, appraised at $16,000, and promised he would get a divorce and marry her. (After the pair’s relationship deteriorated, Carter’s husband found the ring and sold it for $4,750. And then deposited the money in his bank account.)

To prove his love, Morrison went to a shop in Kansas City and got a tattoo in the shape of a heart with the initials “LC.” Eventually, Carter filed a federal sexual harassment complaint against Morrison. Morrison resigned five days after a local newspaper broke the story, and he told the media he was trying to “get right with God.” He urged a state ethics board to investigate his conduct. They did. One award has already been given: to the Topeka Capital-Journal for its investigation and reporting of the story.

Our last nominee is Houston District Attorney Chuck Rosenthal, whose office has sent more people to death row than any other local agency in the country. There were allegations of racism in the District Attorney’s Office, and some defense attorneys and former prosecutors claimed black potential jurors were struck because they were seen as soft on crime. Black leaders believed that blacks were punished more harshly than whites.

Rosenthal was faced with a citation for contempt of court for deleting more than 2,500 e-mails that had been subpoenaed in connection with a federal civil rights lawsuit. But 800 e-mails and attachments preserved on Rosenthal’s office computer contained nudity, hard-core pornography and racist jokes and comments. Rosenthal refused to resign, saying “stupidity” was not grounds for quitting. But just this week, Rosenthal resigned as district attorney and said that prescription drugs may have impaired his judgment.

Award-ceremony custom calls for the speaking of the magic words, “And the winner is …” But in these situations, there aren’t any winners.

When bad boss behavior occurs, it generally happens in an atmosphere in which the law is ignored, company policy is ignored, and the line separating good business practices from boorish conduct—and often unlawful conduct—is crossed. A dose of stupidity, mixed with a larger dose of arrogance, is the guaranteed formula for bad boss behavior. Litigation usually results.

And in a lawsuit, just like the Academy Awards, losers far outnumber winners. While sometimes it is necessary for a company to defend itself against plaintiffs’ attorneys and former and current employees hellbent on litigation, the fight is not without cost, even if an employer wins. There is anxiety, uncertainty, corporate downtime, a loss of employee morale and the risk of a judge or jury acting as “supervisor for a day,” and directing how a business should be run.

Following the law and following company policy will keep you out of a situation in which a “winner” needs to be announced. No envelope, please.

B race yourself. It’s a new year. The holidays are behind us, with not many festivities to look forward to for a few months. The bills are coming in. Everyone has a cold and people are cranky. Here’s one more piece of news that will make your head hurt: Chances are pretty good your company is going to get sued in 2008.

    There are hundreds of ways an employer can get sued, and sooner or later, your ticket is going to be punched. In 2006 alone, the EEOC received more than 27,000 charges of race discrimination. Gender discrimination claims (including sexual harassment claims) represent nearly one-third of all filings with the EEOC over the past 10 years.

    Experts report that claims of family responsibility discrimination, in which workers allege they are treated worse at work because of their responsibilities in caring for children, elderly parents or sick relatives, have increased nearly 400 percent in the past decade. And legislation is pending that, if passed, would expand the statute of limitations on wage claims, prevent discrimination based on sexual orientation and gender, and prohibit employers from using genetic information in employment discrimination.

    But to me, the skyrocketing EEOC charges and employment litigation seem somehow out of whack with reality. It is hard for me to believe all this discrimination is taking place. As always, there are some exceptions to the rule. The recent case in which supervisors allowed an electrical wire in the form of a noose to hang outside a workshop and let graffiti espousing racial hatred remain in workshop bathrooms is one example of a company that deserved everything it got (substantial punitive damages were awarded to the plaintiffs). Likewise, the woman with severe allergies who had a life-threatening reaction each time air freshener was sprayed in her vicinity deserved to win against her employer, who insisted on keeping the timed air-freshener units blasting several times a day.

    Here’s my point: I’ve been defending employment discrimination cases for more than 30 years. I spend an enormous amount of time sitting in depositions and in courtrooms listening to employees complain about their jobs. And after 30 years, there seem to be three behaviors common to plaintiffs: They demonstrate passive-aggressive behavior; they exaggerate or lie; or they refuse to accept personal responsibility for their own poor performance. Sometimes plaintiffs have all three behaviors. Other plaintiffs may exhibit only one. But the fact is these three behaviors cause trouble in the workplace:

    The Passive-Aggressive. The American Psychiatric Association has dropped this behavior pattern from the most recent Diagnostic and Statistical Manual of Mental Disorders, but anyone who has supervised someone in the workplace knows the pattern when they see it. The employee does not respond to the supervisor’s e-mail request for information without several e-mail reminders. The employee who says perkily, “Can do!” to a task request, but then performs the task poorly in an angry fashion. The employee who accepts an assignment, but then stands in the coffee room and complains bitterly to co-workers about his heavy load. You know it. You’ve seen it.

    The Exaggerator/Liar. Employees who exaggerate or outright lie are a huge problem. Oftentimes, those folks create more uproar because of their lies than the actual problem ever caused. Just ask Richard Nixon or Bill Clinton or Marion Jones. Lying and exaggerating are common traits among plaintiffs. A talented fudger can turn a single inept comment into a raging lawsuit. Here’s an example:

    A few years ago, I defended an employer against 16 plaintiffs who were alleging race discrimination. Plaintiffs’ Exhibit 1 was a poster titled “Five Rules for Raising Monkeys.” Included among the rules were “monkeys should be fed or shot” and “the monkey population should be kept below the maximum number the manager has time to feed.”

    The significance of the “monkey poster” grew larger with each plaintiff who testified. Every one of them had seen it. Every one knew without doubt that the poster was clearly a racial slur against the African-American employees in that facility, and their emotional damages were enormous.

    On cross-examination, however, the jury learned the truth: the “monkey rules” were an excerpt from an article written by Kenneth Blanchard (of One Minute Manager fame) and published in the Harvard Business Review describing management tips for dealing with employees who dumped problems and work on other employees’ desks. Race had nothing to do with it. Plaintiffs’ Exhibit 1 disappeared from the courtroom and was not seen again.

    Another example of an employee/plaintiff putting a spin on an innocuous action is the ex-employee who, in order to show that her boss was arrogant and self-centered, claimed that he had given a picture of himself to each member of the office staff at Christmas. Not quite. The supervisor had given each employee an expensive sterling silver picture frame and, to be cute, included in the frame a Xerox of one of his baby pictures. Now, that may have been a silly thing to do, but it didn’t show the arrogance and animus the employee hoped it would.

    The Blamer: I’m no statistician, but based on my experience in litigation, there is a direct correlation between someone becoming a plaintiff and his or her failure to accept personal responsibility for poor performance. Workers who blame co-workers, their supervisor, their job assignment or their lack of training for their own poor performance often take the next step of blaming a supervisor and claiming discrimination or retaliation instead of admitting poor performance.

    So what’s an employer to do? Screening to weed out these behaviors is difficult. Job and personal references are not always helpful. If the candidate was a problem at her previous job, chances are good that the former employer only wants to put the sorry experience in the past and may be afraid to be candid in her assessment of the applicant’s abilities. A discrete inquiry as to the applicant’s education and previous jobs may, however, yield substantial information to determine if an applicant has exaggerated his past. Anyone who claims to have a degree they don’t or fabricates previous job history will no doubt exhibit these negative behaviors in the new workplace.

    A supervisor’s first assessment of a candidate is at the initial interview. Remember that interviews are inherently stressful and it may be hard to read a nervous applicant, so schedule plenty of time for each interview. Use standard questions, remembering to avoid direct or indirect questions regarding age, sex, religion or other protected categories. But don’t settle for stock answers. Probe applicants with follow-up questions on how they would handle a specific situation, what they would have said and what they would expect the next step to be.

    Identifying the “it’s not my fault” behaviors often takes some time and sometimes cannot be accomplished in the initial interview. Watch for telltale signs in speech and behavior. My experience in interviewing job candidates is almost identical to those frequent occasions when I am picking a jury. A potential juror who refuses to accept responsibility for his own actions will more likely than not side with a plaintiff who complains of discrimination when counseled for performance problems. Likewise, a candidate who complains about a previous employer may be telling you something about his inability to accept responsibility.

    When interviewing, ask the prospective employee to identify some problems in his previous workplace and the cause of the problems. His answer will go a long way in identifying the candidate’s score on the personal responsibility scale. In jury selection, I find that people with a high sense of personal responsibility make good jurors, and quizzing prospective jurors about their accomplishments (whether keeping their checkbook error-free or rebuilding a family room) all help identify individuals with a high sense of personal responsibility. The same holds true for employees: the higher the employee’s score on the personal responsibility scale, the less likely that litigation will occur.

    Identifying the passive-aggressive types, sorting out the liars and exaggerators, and avoiding the blamers will help employers reduce their litigation risk in 2008 and beyond.

Most employers know that employment laws vary across the country. How much of a difference is often surprising to business owners and human resource professionals. Sometimes, what law applies to employees and how the law is interpreted by the courts is more a function of your ZIP code than anything else.

Take, for example, my home state of Kansas. While the state’s flat plains have plenty of blue sky overhead, the ceiling on discrimination claims is very low: Damages are limited to $2,000 for any lawsuit brought under the Kansas Act Against Discrimination. And for most lawsuits filed pursuant to the 1964 Civil Rights Act, damages are capped at $300,000. Across the border in Missouri, the potential for plaintiffs’ damage awards, according to Missouri state discrimination laws, is sky high—no caps. It’s obvious: Your company’s ZIP code may determine which discrimination laws apply to you, as well as how they apply.

There are11 circuit courts of appeal in the U.S. judicial system, each comprising a handful of states. The 8th Circuit, for example, takes in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. Next door, the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. But those neighboring appeals courts may have wide splits for many years on particular legal issues. For example, a ruling from the 8th Circuit on an individual’s rights under the Americans With Disabilities Act will differ from the 10th Circuit’s interpretation of the same set of facts. Your ZIP code, which circuit governs your company’s location, may be the determining factor in whether you, as an employer, have violated the ADA.

The federal ADA requires most employers to make a “reasonable accommodation” for “qualified” employees who can no longer perform the essential functions of a job. A “reasonable accommodation” is defined as “job restructuring, part time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

Sounds pretty simple. But the 8th and 10th Circuits have issued widely differing rulings defining the simple phrase “reassignment to a vacant position.”

The 10th Circuit, in the case of Smith v. Midland Brake Inc. (180 F.3d 1154 [10th Cir. 1999]), ruled that a disabled employee must be automatically reassigned to an existing vacant position. Robert Smith was employed by Midland Brake when he developed a disability that prevented him from performing the essential functions of his job. Smith was ultimately fired by Midland. As you might expect, Smith sued Midland for discrimination under the ADA. Midland successfully proved to the trial court that it could not accommodate Smith’s disability. Smith appealed, and the 10thh Circuit took up the appeal.

The 10th Circuit focused on the definition of “reassignment to a vacant position.” The court relied on the EEOC’s Interpretive Guidance: “Does reassignment mean that the employee is permitted to compete for a vacant position? No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.”

And in doing so, the court determined that a reassignment of a qualified person with a disability was required if a vacant position was available and no other reasonable accommodation could be made. A disabled employee did not have to compete with other applicants for a vacant position, but the employee should be moved into the position by default. Although there were other factors in its decision, the 10th Circuit found the EEOC’s guidance in favor of an automatic reassignment to be particularly persuasive.

But next door at ZIP code 72716, in the case of Huber v. Wal Mart Stores Inc., decided in May 2007, the 8th Circuit came to an entirely different conclusion and ruled that a disabled employee is not automatically granted reassignment to a vacant position. Pam Huber, a dry-grocery order filler for Wal-Mart Stores, suffered a permanent disability to her arm and hand and could no longer perform the essential functions of her job. Huber requested reassignment to a vacant router position, but her request was denied and Wal-Mart instead hired another applicant for the job, following company policy that the most qualified applicant for a position be hired. Huber was later reassigned to a janitorial position, with a pay cut of nearly $7 an hour.

Again, as might be expected, Huber filed a lawsuit against her employer, and using the 10th Circuit’s ruling in Smith as precedent, argued that she should have been automatically reassigned to the store’s vacant router position. Wal-Mart used the 7th Circuit’s interpretation of “reassignment to a vacant position and cited EEOC v. Humiston Keeling Inc. (7th Cir. 2000), which stated that a reassignment is not required if a more qualified applicant has applied for the position. The 8th Circuit adopted the 7th Circuit’s ruling and held that a disabled employee is simply given the ability to apply for a vacant position, but is not guaranteed reassignment to a vacant position. To me (and probably most employers’ lawyers), the 8th Circuit decision makes the most sense to employers that want to employ the most qualified folks for open jobs.

One law, two circuits, two rulings, two different results for employers. Only action by Congress or the U.S. Supreme Court on this issue will remedy the ZIP code phenomenon of different results from the same law. Until that happens, employers, corporate counsel and HR professionals know that “location, location, location” are important guiding principles in what and how the country’s employment laws apply.

Employers, general counsels and human resource professionals who have been through litigation know the cardinal rule of employment law: “Winning isn’t everything. You still owe attorneys’ fees.”

    An employer called upon to defend a charge of discrimination before a human rights agency such as the federal Equal Employment Opportunity Commission or a state equivalent will pay attorneys’ fees ranging from $2,500 to upwards of $10,000 for preparation of a response. Defense of a lawsuit will cost even more—typically $35,000 to $100,000, depending on the number of plaintiffs, types of claims, number of witnesses and exhibits involved and, of course, the adversarial level of the opposing party. Your lawyer will expect to be paid, win or lose.

    Adding insult to injury, federal courts have begun to allow the EEOC to continue pursuit of discrimination claims for employees who have already settled their claims through mediation or arbitration. One federal court compelled a Michigan company to pay the EEOC $500,000 after a group of former employees settled their claims for race discrimination.

    Faced with the prospect of endless rounds of attorneys, attorneys’ fees, costs, employee downtime and emotional disruption, employers, general counsels and HR professionals have become resourceful in developing ways to reduce or even avoid employee claims and the subsequent expenses. Strong, closely enforced anti-harassment policies, statute-of-limitation waivers, employment agreements requiring mandatory arbitration of employment disputes and “anti-discrimination bonds” are all tools used by employers to curtail the runaway costs of discrimination and harassment. The most useful tool of all may soon come into play as well. More about that later.

    Sexual Harassment Policy and Training: With the 1998 decisions in Burlington Industries Inc. v. Ellerth and Faragher v. City of Boca Raton, the U.S. Supreme Court provided employers with a road map to reduce liability for harassment. Implementation of a strictly enforced anti-harassment policy with adequate complaint procedures allows employers to avoid liability altogether. And the big-ticket item, punitive damages, can be avoided completely in those cases where employers make good-faith efforts to prevent discrimination through education and training. According to the court, “[T]he purposes underlying Title VII are … advanced where employers are encouraged to … educate their own personnel on Title VII’s prohibitions.”

    At least three state legislatures have answered the Supreme Court’s call: Connecticut, Maine and California have statutorily mandated training on the prevention of sexual harassment, requiring a minimum amount of training for supervisors. In Maine, all employees are required to have such training.

    When compared with the price tag for defending a sexual harassment claim or lawsuit, a simple dollars-and-cents analysis of the cost of developing a policy and training employees makes this decision a no-brainer.

    Statute-of-Limitation Waivers: Limiting the time in which an employee may file a discrimination claim is not a new idea, but such an agreement, carefully crafted, can be the impetus for either a quick resolution of a complaint or ultimate dismissal of a plaintiff’s case because of the shortened statute of limitations. In this case, time is money, and early resolution or dismissal almost always reduces time and expense for an employer.

    Mandatory Arbitration: Mandatory arbitration of employment disputes can also be extremely effective at reducing both time and costs of litigation. The EEOC has mediated more than 50,000 cases since 1999, and more than 6,500 of those mediations resulted in non-monetary settlement.

    Most employers are subject to the Federal Arbitration Act. The U.S. Supreme Court has held that employment arbitration agreements are enforceable under that law, and that courts can compel arbitration. Some state courts (Colorado is one example) have chosen to follow the federal court lead and often resolve employee disputes in favor of arbitration.

    Another benefit of employment arbitration agreements is that in some states, employees are not required to sign the agreement in order for it to become binding. In one recent case, a New Mexico federal court held that despite the fact that the employee never signed nor objected to the employer’s arbitration agreement, the employee’s continued appearance at work after the agreement’s effective date constituted her assent to the terms of the agreement.

    Benefits arising from the implementation of mandatory arbitration agreements include the employer’s ability to manage discrimination issues internally, in less time and with lower cost. However, before implementing a mandatory arbitration agreement, employers should check both federal and state law to ensure that such an agreement will be beneficial, given the employer’s geographical location and the type of work performed.

    Anti-Discrimination Bond: This idea, suggested by Anne Marie Knott, assistant professor at the Olin School of Business, Washington University at St. Louis, has the possibility of reducing employment litigation. According to Knott’s concept, the employee has the option of contributing to an individual savings account much like a 401(k). If the employee sues the employer, the employee forfeits the funds in the account as an offset to the expenses incurred by the employer in the subsequent litigation.

    This seems to be a classic instance of putting your money where your mouth is and underscores the creative measures businesses seem to be willing to take to reduce what they perceive as unnecessary expenses. No comment or legal opinion from me, however, on the legality or advisability of this action.

    Recovery of Attorneys’ Fees: Here’s what would really make a difference for employers: Allow them to recover attorneys’ fees and expenses when they win. Given the Supreme Court’s recent undeniable swing to the strict construction of federal laws, it may be time for a review of two federal statutes: 42 U.S.C. § 1988 and its Title VII counterpart, 42 U.S.C. § 2000e-5(k). These two statutes provide that in federal civil rights actions, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

    The 1978 U.S. Supreme Court, in the case of Christianburg Garment Co. v. EEOC, made a distinction between a prevailing defendant and a plaintiff. The court did not apply the plain reading of the statute (“prevailing party gets fees”), but determined that a prevailing defendant could recover attorneys’ fees only “upon a finding that the plaintiff’s action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith.”

    The 2007 Supreme Court, however, may likely differ. Consider the two very different outcomes of two recent employment law decisions.

    In Burlington Northern & Santa Fe RR v. White, the court seemed purely “pro-employee,” looking at the statute itself to define an adverse employment action. The court ignored previous court rulings interpreting that same statute and instead relied on its plain language.

    But in the same term, the Supreme Court flipped 180 degrees from its pro-employee decision and gave us the pro-employer case of Ledbetter v. Goodyear Tire & Rubber Co. Again, the court ignored past interpretations of the statute, and made its determination regarding the statute of limitations for filing a charge of discrimination on the strictly construed language of the statute.

    As Burlington and Ledbetter illustrate, it appears as if the current Supreme Court will look at the plain meaning of employment statutes rather than other earlier court decisions interpreting the text. In Ledbetter, the court concluded that “[u]ltimately, experience teaches that strict adherence to the procedural requirements specified by the Legislature is the best guarantee of evenhanded administration of the law.”

    The federal statutes, 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k), make no distinction as to whether the “prevailing party” is plaintiff or defendant, and courts have ignored both statutes’ plain language with regard to the award of attorneys’ fees. Now may be the time for this issue to be addressed by the nation’s highest court. With the prospect of paying fees and costs to the company it just sued, plaintiffs’ attorneys may be a little more reluctant to file a lawsuit when the facts and law are not clear, and employees may be more inclined to take advantage of other methods of dispute resolution such as internal grievance procedures or arbitration.

The human resource manager took the stand and swore to tell the truth.

    As I watched him explain to the jury the company’s sexual harassment policy and training, it struck me: There’s probably not a dime’s worth of difference between a lawyer instructing jurors on the elements of a harassment case and a human resource manager training employees on sexual harassment. Both struggle with how adults think and learn.

    Human thinking comes from one of two molds: “inductive” thinking or “deductive” thinking. Lawyers (and human resource professionals) are trained to be inductive thinkers. Law students are trained using the Socratic case method: Read three or four obscure court decisions about some farmer trespassing onto a neighbor’s property, review the court’s reasoning, and develop a rule of law. Human resource professionals use the same method: They accumulate data points, add up the data and come to a conclusion.

    But most folks are “deductive” thinkers. These people start off with a conclusion they believe in, and then sort out the evidence to support that conclusion. Here’s an example of the clash that often happens between inductive and deductive thinkers.

    A few years ago, I volunteered to clean out my son’s car when he came home from college on break. As I began cleaning the trunk and under the seats, I pulled out a bottle of beer he was too young to drink, a pack of something he was too young to smoke and several articles I didn’t want to know about. Adding it all up, I quickly came to the conclusion that my son was engaged in a lifestyle I did not like. And I immediately let him know my displeasure. In the midst of our discussion, his mother (a deductive thinker) came into the room to umpire the ruckus. As she listened to my explanation of what I had found in his car, she commented, “Chris, do not let your friends keep things in the trunk of your car.” Most people think the way she does. Most people are deductive thinkers.

    Any lawyer familiar with the jury trial process will tell you that jurors think deductively. They make an instant decision on who they think should win, then sort out the testimony and evidence presented that supports the conclusion they want.

    In a recent trial involving manufacturers Amway and Procter & Gamble, the jury decided that Procter & Gamble was not able to show it lost any sales from the recurring rumor of devil-worshipping, but wanted to compensate P&G for “out-of-pocket” expenses. The jury counted the number of P&G attorneys in the courtroom, guessed the number of hours they had worked over the past 10 years, multiplied by what the jury guessed was an attorney’s typical hourly rate, and came up with the $19.25 million verdict for P&G. Deductive thinkers.

    Human resource professionals have similar experiences when training employees in the area of sexual harassment. These employees are generally oblivious to how a joke or “innocent comment” can cause the uproar it does. Like trying to educate teenagers on the hazards of smoking, the deductive-thinking employees start with the premise “It is no big deal,” and justify their behavior to support that conclusion. The same is true with deductive thinkers in the sexual harassment context. In a recent court decision, the soccer coach for the University of North Carolina justified his sexual innuendo as “just joking.”

    It can be tough to make the point to deductive thinkers. Thirty-two years of trial work and employee training leads to the following suggestions to reach deductive thinkers:

1. Use self-interest—their self-interest. The creator of the frying egg/”your brain on drugs” advertisement knows this technique. We talk for hours about the corporate mission, company culture, corporate profitability and the necessity of a harassment-free workplace. Inductive thinkers get it; deductive thinkers won’t. The trainer must demonstrate how sexual harassment affects each person in the company.

   
   

2. Fear is helpful. If a supervisor or a line worker knows he/she will be fired for sexual harassment, it will sink in. No one wants the humiliation of being fired and telling the family why.

   
   

3. Repetition works. Advertisers know the principle of repetition sells: “The Energizer bunny keeps going … and going … and going.” Enough said. We’ll remember.

   
   

4. Make it real, make it visual. People are trained from babyhood to learn visually. Devices such as video clips and goofy props all work. At an employee training session, I walked to the front of the room with a baseball bat and a stuffed baby seal and explained that the seal was a sexual harasser and the baseball bat was the company’s sex harassment policy. The audience got the point.

   
   

5. Keep the presentation interactive. Effective techniques include speaking from the floor rather than a stage; walking the room to have conversations with participants as questions arise; positive reinforcement when questions are asked; and the ability to change direction when required rather than slavishly following PowerPoint slides. Keep the information flowing, the thought processes working, the employees learning.

   
   

    Several years ago, I asked an employee in a deposition if he understood the sex harassment policy. The employee responded, “I read it, but I did not understand it.” Whether you are a lawyer talking to a jury or a human resource trainer teaching anti-harassment policies, spending some time thinking about how deductive thinkers learn will ensure that the listeners actually learn.

If  lawyers who represent employees against employers—plaintiffs’ attorneys—were rats in a maze, they would get to the cheese faster than a politician gets to a handshake.

    Plaintiffs’ lawyers are maze-wise. They know how the system works. They know that if they can create factual issues of “he said, she said,” throw in some “David and Goliath” pathos and skip past the trapdoors leading to legal issues, they will most likely get their client in front of a jury. And that leads to dollars in their pockets, either through settlement (because many employers would rather settle than go through a lengthy, painful trial) or through a substantial dollar award by a jury.

    Given the U.S. Department of Labor’s newest regulations and the fact that the number of collective actions filed under the Fair Labor Standards Act now exceed all other types of employment collective actions combined, the rats are after one big hunk of cheese.

    Remember that juries decide questions of fact. And an employee’s FLSA claim is chock-full of these questions.

    Think of the employee who testifies that in spite of the company’s handbook rules regarding overtime and the prominent time clock posted on the break room wall, employees routinely worked “off the clock” because there was so much work to do. Or the employer who delegated a supervisor to ensure employee compliance with overtime rules, but looked the other way when payroll budgets were too high and production levels were low.

    There is no easy fix to eliminate a hungry lawyer on the prowl for a good plaintiff case, but some simple steps taken early on, and consistently followed, can help barricade entry to the employer’s checkbook.

    First, employers must keep in mind that there are only a handful of exceptions to the rule that employees should receive hourly pay, with time and a half for overtime.

    My first rule? Have three sets of eyes scrutinize any exception to hourly pay. The company’s corporate management, human resources administrator and legal department or outside counsel should sign off on every situation that falls outside the hourly pay standard.

    Second, audit your company’s pay practices, frequently. Regularly re-examine each job position: Review the position’s job description, the employee performance and evaluation form, and the pay scale for that position, all with the objective of a fair, impartial evaluation as to whether the position is truly exempt or nonexempt. Use someone with a fresh eye to conduct the audit, not the person who originally designated the position as exempt.

    Third, employers should develop a culture of fairness and good faith in dealing with employees. Avoid the trap of demanding mammoth output goals be accomplished within a 40-hour workweek, encouraging employees to work longer hours without overtime pay to meet quota.

    Coach and counsel, discipline and document all occasions when employees are discovered working off the clock. And save a copy of each of those disciplinary actions in a “plaintiffs’ attorneys will never take advantage of me” file. When an allegation comes along that the company has allowed a policy of encouraging employees to work off the clock to flourish, just reach for that file. You’ve made your defense lawyer’s job infinitely easier, and less costly.

    An employer’s good faith can also be established through well-drafted, even-handed and consistently enforced company policies. Employers can also ask the U.S. Department of Labor for a written ruling, approval or interpretation of a particular position’s pay status. An employer’s good faith application of a particular action because of such a ruling is an absolute defense to a minimum wage and/or overtime claim.

    By following just a few pre-emptive and proactive procedures to monitor its pay practices, a company can stop even the hungriest maze-wise plaintiffs’ lawyers in their tracks.

I live in Wichita, Kansas, a quiet town known for being the birthplace of Pizza Hut, Mentholatum and Cessna Aircraft. The big news recently was the capture of “BTK” (“Bind, Torture and Kill”), the self-named serial killer who had terrorized the Wichita community since the 1970s. Despite frequent communication with media and local law enforcement, BTK eluded capture for many years and finally disappeared from the public eye. Last year, BTK suddenly began to again taunt police by sending cryptic poems, puzzles and items removed from the murder scenes.

    BTK’s capture dominated the local news, edging out the front-page story on the opening of Babes and Booze, a bar in Wichita’s newly renovated Old Town, where the waitresses wear only sprayed-on latex as work uniforms. Another big story in this Bible Belt community was the relocation of the local Hooters to an exclusive upscale eastside location.

    As a lawyer who routinely defends gender discrimination cases, it is fascinating to observe how an employer such as Babes and Booze is able to impose a different standard of conduct for male and female employees within the confines of Title VII of the 1964 Civil Rights Act. Since 1964, U.S. employers have been required to provide equal treatment in the terms and conditions of employment regardless of gender, race, color, creed, national origin or religion.

    Can an employer such as Babes and Booze or Hooters treat female employees differently than male employees and still comply with federal “equal treatment” requirements? The answer is: sometimes yes, sometimes no.

Sometimes yes
    Newspaper and television commentators expressed consternation over a recent federal appeals court decision that Harrah’s Casino in Reno, Nevada, had the right to fire bartender Darlene

    Jespersen for refusing to wear makeup. Harrah’s adopted a “Personal Best” grooming policy requiring Harrah’s employees to adhere to certain guidelines, including short hair and neatly trimmed fingernails for men. Men were barred from wearing makeup. Harrah’s female bartenders and beverage servers had similar grooming requirements, but were required to wear makeup.

    Jespersen, a 21-year employee of Harrah’s, refused to comply with the policy and claimed that the differences in the policy for male and female beverage servers constituted disparate-treatment sex discrimination in violation of Title VII. The 9th U.S. Circuit Court of Appeals assessed the actual impact of Harrah’s makeup/no makeup policy on both male and female employees, weighed the cost and time necessary for employees of each sex to comply with the policy and ultimately agreed with Harrah’s approach.

    The court noted simply that Jespersen failed to produce “some” evidence that the makeup requirement placed a greater requirement on female bartenders than the requirement that men maintain short haircuts and neatly trimmed nails. There was no evidence that these burdens were greater for women than men, and the court ruled that Harrah’s policy was not a violation of Title VII since it did not discriminate because of “immutable” or unchangeable characteristics, and because it imposed equal burdens on both sexes. In my opinion, Jespersen lost because of a technicality–the judges thought she needed more evidence to prove her case.

    A similar case arose recently in Iowa. A male employee filed a lawsuit against his employer claiming he was discriminated against on the basis of gender because his employer told him he could not wear a stud in his ear. Female employees for the same employer were allowed to wear studs or earrings. The court ruled that wearing an earring stud was not an immutable characteristic–you could cover up the stud or take it out–and that federal law did not prohibit employers from establishing personal grooming standards that might treat males and females differently.

Sometimes no
    A Michigan court of appeals, meanwhile, allowed the Michigan Department of Corrections to hire only female security guards for a detention facility housing females because of the state’s goals of security, safety, privacy and rehabilitation. But a federal court in Arizona ruled that it was a violation of Title VII for Marriott International to refuse to hire a male massage therapist merely because most customers requested female massage therapists. The court found that Marriott’s policy of assigning female massage therapists to females and males to males was driven by customer preference, not by a public policy interest. And the court reminded Marriott that the extra cost of hiring male therapists who might not be used by customers did not justify its gender-based hiring.

    In another case, a topless club in Houston tried to limit the number of black dancers at the club in order to “keep a racial balance” among the clientele. The court said bluntly to the defendant that such a practice was intentional racial discrimination and that dancers could not be selected on the basis of race.

    My favorite sex-based hiring cases are, of course, the Hooters cases. Hooters refused to hire men and claimed the restaurant was providing “vicarious sexual recreation” as a way to argue that female allure was a bona fide occupational qualification. The court noted that this ploy might have worked except for Hooter’s advertisements that it was a “family” restaurant. In one class action, Hooters agreed to pay $2 million to the males who were denied the opportunity to serve as “Hooters Girls,” paid $1.75 million in attorneys’ fees and was ordered to create three gender-neutral positions. Hooters Girls are now assisted by “Hooters Persons.”

Lessons for employers
    At all costs, avoid grooming standards that are different for men and women. If you must impose a particular requirement, avoid standards for immutable or nonchangeable characteristics. If your policy requires nonchangeable characteristics, you will run into problems, or lawsuits, or both.

    Keep your grooming standards as gender-neutral as possible. If there is a necessary difference, treat the standard as if it is an accountant’s ledger in which the requirements for males equal the requirements for females. Remember, these are disparate-treatment lawsuits.

    No differences can be based on race. Period.

    If you are going to use gender as a bona fide occupational qualification, think of the “qualification” as an essential function of the job–a topless female dancer must be female; and a male performer would probably required to play the role of Michelangelo’s David.

    Employers sometimes face liability for treating one gender differently than another. And sometimes they don’t. Like BTK, sometimes employers just get away with it–for a while.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, May 2005, pp. 12-14 — Subscribe Now!

D ear Bill:  You certainly had an eventful October.

    First, you received a letter suggesting a meeting to “resolve the complaints of a young woman employee who had been the victim of constant and relentless harassment by a prominent on-air personality.” Then you sued female colleague Andrea Mackris and her attorneys for attempted extortion, tortious interference with prospective business relations and intentional infliction of emotional distress.

    Mackris filed her own lawsuit against you and your boss, Fox News Channel, for sexual harassment, a sexually charged hostile work environment and retaliation. You took your case to the American public on your television show, The O’Reilly Factor, calling her lawsuit “the single most evil thing I have ever experienced.”

    Mackris’ father reportedly challenged you to a duel. And on October 28, the two lawsuits were settled out of court for an undisclosed amount. “Multimillion-dollar settlement” was the phrase most frequently reported by the media.

    Bill, I have to admit I’ve never seen your television show. Until recently, I thought the “No Spin Zone” was a show about bicycling. But I’m told that The O’Reilly Factor makes no bones about “telling it like it is.”

    I’m in a similar position. “Telling it like it is” to a defendant accused of sexual harassment in the workplace is something I have made a career of. While the facts of the many sexual harassment lawsuits I’ve handled since 1980 differ and probably vary somewhat from yours, there are some common truths contained in all of them. Here is the shortlist of truths to be remembered. Everyone can learn from these.

    Truth No. 1: Somebody’s gonna pay. You probably know this one already. The biggest cost is emotional energy. Emotions are at a fever pitch on both sides of the lawsuit’s case caption. Everyone associated with the plaintiff and defendant gets emotionally involved. If time is money, then there is a lot of money expended on participating in investigations, testifying at depositions and rumormongering around the water cooler or its e-mail equivalent.

    Most large corporations will tell you that defending a “routine” sexual harassment lawsuit costs anywhere from $55,000 to $150,000 or more. My guess is that yours fell in the “or more” category. If you add in the emotional-energy quotient and loss of productive work, the expense can quickly become dizzying.

    Truth No. 2: Employment lawyers will always stay busy. As long as human nature remains the same, lawyers will have plenty of work. We’ve never met and I don’t know your off-screen personality, but let’s take another Bill–former President Clinton–as an example. The characteristics that took him to the presidency–the drive for power, a strong ego, a sense of control, the notion that criticism and commentary would bounce off him–are the same characteristics that are found in virtually every Type A personality and in every defendant in a sexual harassment lawsuit.

    Many experts will tell you that sexual harassment isn’t about sex at all, but more about power, ego and control, fueled by a feeling of being “bulletproof.” A leader’s strong natural characteristics can be channeled to achieve great deeds. Misguided and misdirected, those same characteristics cause a lot of problems.

    Truth No. 3: Perception often becomes reality. The U.S. Supreme Court says that to prove a hostile-environment sexual harassment claim, an employee must show several things, including that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.

    Whether the conduct is sufficiently severe or pervasive to constitute sexual harassment depends almost completely on individual perception. In a lawsuit, it is the perception of the judge and jury.

    The judge and jury will look at two kinds of evidence: direct and circumstantial. Direct evidence is easy. You said it, she taped it, the jury hears it, you lose. But without such direct evidence, the jurors are free to impose their own perceptions on the evidence.

    Here’s a story from my trial files. A couple of years ago, I defended a lawsuit filed by 14 African-American plaintiffs who claimed they were subjected to a racially hostile environment at work. Millions of dollars and the defendant’s reputation were at stake. At trial, plaintiffs introduced a poster called “Monkey Rules” that had been prominently displayed in the workplace.

    At first glance, it was shocking. In his examination of my client, the plaintiffs’ attorney played up years of racist diatribes and name-calling to associate those rules with discrimination against the plaintiffs. One of the rules was “Monkeys should be fed or shot.” Another monkey rule suggested that monkeys should be fed by appointment only.

    The plaintiffs perceived those “monkey rules” to be racially discriminatory. The reality was that the poster was a reprint of a Harvard Business Review article, “Management Time: Who’s Got the Monkey?” by William Oncken Jr. and Donald Wass, with commentary by Stephen Covey.

    The Monkey Rules were really management skills on how to deal with employees who get rid of business problems by delivering them to you for a solution–“putting the monkey on your back.” After the Harvard Business Review article was introduced as an exhibit, the Monkey Rules poster disappeared from the courtroom. (P.S. We won that case.)

    That same tug-of-war between perception and reality exists in almost every hostile-environment sexual harassment case. Touching, sexual innuendo, private lunches or meetings, late nights at the office and frequent cell phone calls at odd hours are all evidence from which different perceptions could be derived. And then the perceptions can become reality. Try as it might to impose a “reasonable person standard,” the Supreme Court cannot dictate an individual’s perception. People in positions like yours, Bill, can do themselves a favor by avoiding any sexual harassment and avoiding any conduct that could be perceived as sexual harassment.

    Truth No. 4: You’re not playing football. The best defense is not a good offense. Going on the offensive will draw a retaliation charge every time. In the sexual harassment context, the best defense is not to be offensive. Enough said.

    My great-uncle was an evangelical minister. He often told the story about the elderly Presbyterian woman who believed in predestination. She fell down the stairs one day. After she picked herself up, she looked back up the stairs and remarked, “I’m glad that’s over.” Regardless of your religious beliefs, I suspect you are glad this is over. And on behalf of everyone who deals with similar situations every day, thank you for reminding us of the truths to be learned from these unhappy situations.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, December 2004, pp. 20-21 — Subscribe Now!

As an employment lawyer, I have two recurring nightmares.

    In the first, I am at the courthouse to try an employment-discrimination case that I know I cannot lose. I’ve got good facts, good witnesses, good law, and the judge acted as if she liked me at the pretrial conference.

    This is going to be a slam dunk, a piece of cake. As I sit at counsel table, I swivel in my chair to view the potential jury panel. Uh-oh. The jurors include my ex-wife, her parents, several former law partners and the airline ticket agent I yelled at in 1989.

    My client looks on in disbelief as I pull out my checkbook and write a personal check to the plaintiff for the full amount of his claim.

    “This one’s on me,” I tell my client. Then I wake up in a cold sweat. The only way I can get back to sleep is to count–like sheep–the zeros on the check I’ve written.

    My second nightmare is as painful as the first. I dream I am corporate counsel for a large manufacturer. We’re a good company, and profitable, but to compete in today’s economy, we run a pretty tight ship. One morning, the company president calls me.

    “I just got a voice mail from my secretary, Laura. She’s been off work for nearly two months because of her carpal tunnel problems, but now her doctor says she can come back to work for a few hours every day if we redesign her workstation.”

    “Great,” I say. “We’ve missed Laura.”

    “No, we haven’t,” says the president. “Laura was always a pain in the keister, and I haven’t missed her a bit. I like the temporary secretary better. And what I realized while Laura has been gone is that she didn’t work very hard and was overpaid for what she did. She’s just gaming the system,” he continues.

    “I want you to call Laura and tell her we can’t use her. She’s fired. Then we can hire the temp, and Laura can sit home and collect unemployment for a while.”

    I’ve never made it past this point in the dream; I just sit up straight and scream. For an employment lawyer, a return-to-work situation like this is scarier than my other nightmare.

    In real life, these situations occur more frequently than any manager would like to admit. Very recently, a jury in Colorado awarded more than $8 million to a plaintiff who was not allowed to return to work several years after recovering from a brain aneurysm. And the company had to pay the plaintiff’s attorneys’ fees and costs.

    Employers that have been through these return-to-work situations can testify that they are the quicksand of the workplace desert. With no visible solid ground, the slightest misstep can be fatal.

    The array of laws from which “Laura” can choose to sue her employer is vast. Mr. President, consider the following before you hand Laura her final paycheck:

    The Americans With Disabilities Act. The ADA prohibits adverse job action against an employee who is able to perform the essential functions of a job with reasonable accommodation. Depending on the job’s “essential functions,” a redesigned workstation, reduced hours or intermittent leave may constitute a reasonable accommodation.

    If Laura’s requested accommodations are reasonable and won’t break the bank, the president has to back off and let her return to work.

    Family and Medical Leave Act. The FMLA protects employees from an employer’s interference with requested leave and retaliation for exercising FMLA rights. A valid FMLA leave requires the employer to reinstate a returning employee to his previous job.

    Employees who exercise their right to sue for an FMLA violation may also sue the manager who made the decision to terminate them.

    In Laura’s case, the president’s time would be well spent in evaluating her requested return to the workplace in the FMLA context to ensure that Laura’s federally protected FMLA rights are not violated. If Laura’s leave is a valid FMLA leave, she is entitled to her previous job regardless of how poor an employee she was before she took leave.

    Workers’ compensation. Although workers’ compensation laws vary from state to state, there is one constant. If an employee is unable to work because of a workplace injury, he will receive a substantial increase in workers’ compensation benefits.

    This may fall into the “that’s the least of our worries” category in Laura’s situation, but workers’ compensation settlements can result in long-term increases in insurance premiums or significant expenditures for companies that are self-insured.

    Wrongful discharge. In many states, an employee cannot be terminated because she files a workers’ compensation claim. The tort of “retaliatory discharge” allows an employee to recover her lost wages, money damages for humiliation, punitive damages to punish the wayward employer and, in some cases, attorneys’ fees.

    The president’s decision to fire Laura because he believes she is “gaming the system” will give the term “game playing” a whole new meaning for the company coffers, both in dollars spent and in lost time. And chances are that if Laura knows how to “game” the workers’ compensation system, she’s also pretty adept at “gaming” the judicial system as well.

    Breach of implied contract. In some states, an employee has a cause of action against her employer if the employer violates its own internal policies on how employees are to be treated. Employee-handbook policies for workers’ compensation, paid time off, sick leave and other absences can be used effectively against a company at trial, especially if the company violated the policy in terminating an employee who, by policy, had additional time off available.

    Watching a plaintiff’s attorney wave the offending policy under the nose of the human resources director at trial is akin to watching someone–the employer–get beat up with his own stick. The president must remember that he is in a chess game, not a boxing match, and must think carefully before making a move.

    A careful review of the handbook and the company’s policies regarding leave and return to work is definitely in order. Taking the time to comply with company policies is also probably a good idea for the president.

    Written contract. Returning an employee to work may also involve following the terms of a collective-bargaining agreement, a written employment contract, or some other agreement between the employer and the employee.

    The president is smart not to break the terms of any such agreement.

    I know there are others. But listing them would only make my nightmare worse. And explaining each of these laws and the employee’s rights and protections to a company president hell-bent on firing an employee is overwhelming.

    On my best nights, I can get back to sleep by dreaming of giving the under performing employee her job back. It doesn’t matter that she doesn’t do the job very well.

    On my worst nights, I visualize firing Laura, then stare at the ceiling and count, like sheep, the number of days until the statute of limitations runs out for Laura to file her lawsuit.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, November 2004, pp. 16-18 — Subscribe Now!

You’re discriminating against me!” The about-to-be-terminated employee springs from the chair and makes his pronouncement. Mouths open. The room grows quiet. The company’s human resources director and the employee’s supervisor exchange shocked looks. This was to be a simple termination: the supervisor, department head and the human resources director made sure the company’s progressive-discipline policy was followed to the letter.

    The poorly performing employee had first received a “coaching and counseling,” a written warning, followed by a performance-improvement plan and a two-day suspension. It was obvious that a firing was imminent. Everyone made a special effort to be civil and courteous, honest and open. But now, the cry comes: “Discrimination!”

    In our office, we call this a “hemorrhoid” case. Here’s why. In 1962 in Salina, Kansas, every seventh-grade boy was required to take an industrial arts class. On the first day of school, Mr. Milton, the shop teacher, quickly identified six boys (I was one of the miscreants) as the class clowns and moved us to the front of the room to sit at one big shop table so he could keep an eye on us. Big mistake. The perfect storm of six mischievous junior-high boys sitting together kept everyone in stitches. I misbehaved more at that table than I have before or since. One day as I entertained the table after lunch, I suddenly felt a weighty hand on my shoulder. The room got quiet. Mr. Milton was going to make me an example to the class. In those days of corporal punishment, Mr. Milton took special pride in his paddle. About 36 inches long, made of solid oak, with a half dozen quarter-size holes drilled through the middle to provide extra wallop, the feared instrument hung on a nail by the classroom door. On that day, Mr. Milton grabbed it, marched me to his desk, bent me over the edge and drew back for the swing. Just at the height of his backswing, a shout came from the shop table in front: “He has hemorrhoids!” Mr. Milton froze. No swat. I pranced back to my seat. Misfits 1, Mr. Milton 0.

    The diversion shout “hemorrhoids!” is not too different from the accusation of discrimination heard in many workplaces right before a firing. In some cases, there may actually be discrimination, and employers must be vigilant to eliminate it. Sadly, however, some employees also have learned that claiming discrimination or participation in a “protected activity” slows or stops disciplinary action because of the employer’s fear of retaliation claims. These fears are not unfounded: EEOC statistics confirm that for fiscal year 2003, almost one-third of discrimination charges included a charge of retaliation.

    Employees can choose from a virtual Scrabble board of laws (ADA, ADEA, FMLA, OSHA, Title VII, USERRA, NLRA) for protection from adverse job action. Each of these federal laws and corresponding state laws contains language to protect individuals against retaliation by their employer for participating in a protected activity. In the courtroom, an employee/plaintiff can prove retaliation in one of two ways: direct or circumstantial evidence. Direct evidence is the easiest to prove, but it very rarely happens. An example of direct evidence would be handing the employee a notice of termination that says, “You complained of discrimination and you’re fired.” Plaintiff’s attorneys dream of that kind of evidence. In that case, employee/plaintiff wins, hands down.

    Proving retaliation by circumstantial evidence is more common. The plaintiff must first show that he engaged in a “protected opposition” to the employer’s violation of law. This may be as simple as crying out some form of “discrimination!” just before being fired or expressing support for others who have complained of discrimination. Then, the plaintiff must prove that he was the subject of adverse job action by the employer and make a link, or “causal connection,” between the cry “discrimination” and the adverse job action. The employer then has to prove there was a legitimate, non-retaliatory reason for the action. And then back to the plaintiff to prove retaliation by poking holes in the employer’s legitimate non-retaliatory reasons for termination.

    An employee’s attorney usually pokes holes in the employer’s reasons by proving that (1) the employer’s stated reason was false; (2) the employer acted contrary to written company policy; (3) the employer acted contrary to its usual practice; and (4) the employer treated the employee differently from other similarly situated employees. If the plaintiff’s lawyer does her job, there will be witnesses who testify that other employees were not fired for similar infractions, and that the supervisor “had it in” for the plaintiff. Other employees’ job evaluations will show that the plaintiff got higher scores than employees who kept their jobs. By stacking up coincidence, inference and offhand comments, a good plaintiff’s attorney can wrangle a juicy jury verdict for the plaintiff.

    Here are the rules I think employers should follow to avoid a “hemorrhoid” case.

    Document, document, document. Records documenting that an employee’s poor performance came before the claim of discrimination or retaliation are wonderful trial exhibits when defending a lawsuit. Follow your company’s performance and discipline policies closely: careful documentation of verbal counseling, candid job evaluations concerning poor performance and detailed performance-improvement plans are all examples of the evidence that wins a retaliation case for the employer. Train supervisors to be complete, accurate and courteous when putting facts on paper. Have another supervisor review the final product for comment before presenting it to the employee.

    Be a fair and impartial judge. Listen to both sides of the story when employee issues arise. Give the employee a fair chance to improve. Involve at least three people in termination decisions. If the department head, the employee’s direct supervisor and a human resources representative all have a say in a decision to fire, defense of any subsequent retaliation claim becomes much easier, especially if these decision-makers are unaware of the employee’s protected activity. Proving a link between the termination and the protected activity will be almost impossible.

    I should have gotten that swat in 1962. I deserved it. And if Mr. Milton had known I didn’t really have hemorrhoids, he would have let me have it. He just didn’t get his facts before he pulled the paddle off the wall. Employers are the same: get the facts beforehand, satisfy yourself that the job action is unrelated to the protected activity and document performance problems and disciplinary action. You will make your lawyer’s job infinitely easier (and less expensive) and avoid hemorrhoids.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, October 2004, pp. 18-19 —Subscribe Now!