Wednesday, January 30, 2013

Unlawful Retaliation In Missouri

When an employee believes that he or she has been a victim of unlawful discrimination in Missouri, and he or she complains about discrimination, that person is protected from the employer retaliating for the complaint. Missouri Retaliation Law  Unfortunately, human nature being what it is, sometimes retaliation seems inevitable.  We hear such maxims as, "Revenge is a dish best served cold" and the Biblical admonition, "An eye for an eye and a tooth for a tooth."  Without employer intervention, retaliation from a supervisor or manager against whom someone has complained of unlawful discrimination is not uncommon.  In fact, the EEOC has determined that the most frequent complaint of illegal conduct it receives are those of retaliation. 

      So, what is retaliation?   Retaliation can take many forms.  It must be taken or condoned by management.  I will just set forth a partial list of potential retaliatory acts from cases we have had at our law firm:

1.  Firing,
2.  Negative performance reviews,
3.  Suspension with or without pay,
4.  Reduced hours or failure to call back,
5.  Demotion,
6.  Reduced responsibilities or inconvenient transfers,
7.  Pay cuts,
8.  Ridicule, trying to get the person who complained to quit,
9.  Lack of promotion,
10. Bad job references and negative comments to potential future employers. 
  Even though most members of management know it is unlawful to retaliate against someone who lodges a good faith belief of discrimination, it may just be too much to bear without some wrath.  No one easily accepts that he or she has been unfair, least of all those who do in fact discriminate based on race, sex, age or disability.  I have never known one accused of sexual harassment to bear no ill will.  We don't like people telling us we're wrong, let alone that we are prejudiced or sexually inappropriate.  

    When a worker complains of discrimination or harassment, even though protected by the law, that is when he or she is most vulnerable.  Oftentimes employers admonish the member of management to "refrain from retaliation," but with human nature the way it is, that admonition is simply not enough. The employer must insure that retaliation does not happen. 

    Many people, our clients among them, have a very difficult time coping with life at work after complaining of discrimination or harassment.  They feel overly scrutinized, which is often the case. Their former friendly co-workers turn on them, either out of senses of self-preservation, or some misguided loyalty to the harasser.  That's when the real trouble can begin. 

Sunday, January 27, 2013


First, I must lodge a disclaimer.  This blog is not a substitute for legal advice and does not establish any attorney-client relationship.  With that being said, what do you do if you think you are or have been discriminated against at work?  What is discrimination?  Who can make a claim of employment discrimination?

In Missouri, as in other states and in the United States, it is unlawful to discriminate against an employee in a protected class.  Discrimination  includes harassment against employees because the employees are also in a protected class.  These laws originally stem from realizations in the 1960s Civil Rights Movement that it is unfair to discriminate based on race and gender.  An employer must have at least 6 employees in Missouri before Missouri employment laws apply. 

In Missouri, workers have protection against discrimination based on race, sex, disability, national origin, age (over40), religion or creed.  These are the protected classes.  A worker who feels he or she has been fired, harassed, demoted, not considered for a promotion, not hired, or otherwise discriminated against must file a Charge of Discrimination with either the Equal Employment Opportunity Commission or the Missouri Commission on Human Rights within 180 days of the discrimination.  After a certain period of time either or both of those agencies will issue a right-to-sue letter and a lawsuit must be filed within 90 days.  

In Missouri, workers can file their lawsuits in state courts and are entitled to jury trials.  For the past seven years, some members of the Missouri Legislature have tried to limit the civil rights of Missouri workers, not just in discrimination cases, but also for Whistleblowers and even for people who get hurt on the job. In 2012 and 2011, Governor Nixon vetoed bills that would substantially restrict the rights of workers.  So far this session, Representative Kevin Elmer has already filed two bills to curtail workers rights in discrimination and whistleblower cases.  Hopefully, the good people of Missouri and the Governor will see fit to continue to defeat this legislation which is backed by big businesses and their millionaire/billionaire owners. 

What is discrimination?  Discrimination can come in many forms.  I have tried cases in which women were grabbed in the crotch, rubbed against, fondled, groped, in addition to being  denied pay and promotions. I have tried cases where African-Americans were called the "n" word, nooses were hung in break rooms, and in addition to being denied pay and promotions. I have tried cases where people over 40 were demoted or terminated because of their age, with employers claiming they were too "slow" or must be ready for retirement.  I have tried cases where workers were forced out of their jobs because they had multiple sclerosis, cerebral palsy and the like, even though they were very capable of doing their jobs. I have tried cases where Caucasians and men were also victims of discrimination because of race and gender.  Race and sex discrimination are not restricted to any one race or only one gender.

I've heard people say that discrimination is a thing of the past.  I wish it were so.  I would happily find something different to do.  When I was growing up, racial epithets were common, want ads were divided by men and women, and women were excluded from service on juries.  Those things are gone, racial slurs are usually made more privately and jobs are filled based on gender, but nobody admits it in the newspaper.  Discrimination is more subtle, but unfortunately it still exists. 

Is it hard to go through litigation and trial in discrimination cases?  You bet.  Most cases are settled, but many are tried.    Some defense  lawyers, at the behest of their clients,  resort to what we call "slut" or "nut" defenses, claiming our clients asked for harassment or our clients are bad employees or are crazy.  I am happy to say that, in a good case, these defenses do not work.  But, being called a lazy, crazy worker or worse is difficult to hear at best.  However, when my clients fight for a just cause and justice prevails, I see how many of my clients change.  Not only have they fought for themselves, but also for others.  I watch as many of my clients experience a tremendous load lift from their shoulders and I get to see the courageous among them become light and free again. 

If you feel that you are being unlawfully harassed or discriminated against, you have some hard decisions.  Many people just take it.  It is hard to fight back.  But for those that do, there is the hope of a better life,  a better self-image and a better legacy for ones children.   Hopefully, one day soon, Dr. King's words will come true and people will truly be judged, "by the content of their character and not the color of their skin."  Or by their gender, age, disability or religion, as well.

Sunday, January 20, 2013


Why not?  Woman comprise 52% of the population. We are a majority of people, but not of trial lawyers.  The world is changing.  In the future, lawyers and judges will reflect the racial and ethnic makeup of society.

Let's look at the qualities of a good trial lawyer, of any race, gender, ethnicity or sexual preference. 

1.  Intelligent - a trait shared by some in all groups. 

2.  Creative - see one above.

3.  Dogged - see one and 2 above. 

4.  Brave, risk-taker -  more and more women have thrown off meek and deferential attitudes.  Women trial lawyers are as tough as men.  In fact, women trial lawyers may be a little braver than men because not only do they have to fight for their clients, they must fight in an area that was a traditionally male battleground. 

5.  Respected by judges - I can honestly say, women can earn the same respect as men. This is no longer the era where judges throw women out of court for wearing pantsuits.   I haven't been called "dear" or "sweetie" by a male lawyer or judge in many years. 

6.  Logical and quick thinking - ditto all above. 

7. Empathetic listener - here I suspect women have a lead over men. I get women are better listeners. 

8.  Someone both women and men jurors will trust. The old wives tale that "women don't like women" is untrue.  Sure, some women don't like some other women and it is the same for men.  I was told women jurors don't like women plaintiffs and that is hogwash. You simply cannot believe in broad generalizations. We are all people with experiences and prejudices. One cannot assign a global hatred by an entire gender.  That wives tale is poppycock (I love that word). 

9.   Honest, fair and ethical.  - see 1 above. 

10.  Caring and compassionate.  Lawyers work with clients like you.  If the lawyer doesn't care about you, don't waste your time with that lawyer. You deserve more than a hired gun. I don't know if women are better at this than men. I do think women make better mothers than men. But, I digress. 

I suggest that anyone looking for a lawyer, meet with the lawyer and ask:  was I listened to, do I respect the lawyer, do I believe the lawyer has my best interests at heart.  When answering those questions, I suspect most answers would be gender neutral. If not, you might explore your own gender-based views. 

Not all lawyers are created equal. Make sure you have a good fit. 

Wednesday, January 16, 2013

Choosing a Lawyer - 8 Guidelines

Choosing a lawyer can be tough.  You want someone who believes in your case and someone who will listen to you.  It’s not about which lawyer is the loudest or who can bully the other side.  Litigation is a long process.  The winners are oftentimes not the loudest lawyers, but the ones who are willing to work the hardest, understand what you are going through and will continue to fight for you come hell or high water.  Above all else, you need to have a lawyer who you can trust.  Lawyers are people with distinct personalities.  You may click with some, but not with others.  When choosing a lawyer, here are some things to consider:

1.   LISTENING.  Does the lawyer let you talk and does he or she take time to understand where you are coming from?  Is he or she really listening to you?  Does he or she give you his or her undivided attention?

2. SHARED VALUES. Do you agree with your lawyers values about why to bring a lawsuit?  Are you in it just for the money?  Probably not.  Your lawyer should also believe in the societal value of your case.  Oftentimes there are principles involved, especially in discrimination cases.

3. EXPERIENCE. Does the lawyer have a proven track record and know what he or she is doing?  If you are bringing a lawsuit for employment discrimination, you need someone who is knowledgeable about the law and has experience litigating and TRYING cases like yours.
Most cases do not go to trial.  Some lawyers have never tried a case, sometimes because trials are frightening and unpredictable.  You need a lawyer with the courage to try the case if need be. .  It is essential that show courage in the face of battle.  Would you choose a surgeon who has never performed surgery before?

4. REPUTATION.  Is the lawyer well-respected by judges and opposing counsel?  It makes litigation easier if your lawyer knows how to avoid unnecessary battles.  However, you need a lawyer whom judges and opposing counsel respect, especially if you go to trial.

5. COMPATIBILITY.  Do you like the lawyer?  The two of you are going to be spending a lot of time together.  You both should like each other.  It’s hard to go through litigation otherwise.

6. RESPECT.  Do you respect the lawyer, and equally, if not more important does the lawyer respect you?  Is your lawyer honest with you, telling you  the good, the bad and the ugly.  You should not want sugar-coating or a lawyer afraid to do what’s best for you.

7. RESPONSIVENESS.  Is the lawyer responsive to your questions?  Do you get calls or other communications (emails) back from him or her?  You should feel like you can ask your lawyer anything and not feel stupid.

8. DUTY. Does the lawyer put your interests before his or hers?  That doesn’t mean that every client gets whatever he or she wants.  The law and courts have a hand in this.  But, the lawyer is there to represent you.  You come first.

Litigation is tough even for the strongest people.  In some cases, the opposing counsel can try to make you question yourself, ask you things that are nobody’s business, or hold you to ridicule.  You have to have a lawyer that has your best interests at heart.  Research your lawyer before choosing him or her.  Ask for recommendations.  This is one of the most important decisions you will make.

Monday, January 7, 2013


When I first started trying employment discrimination cases, I tried a lot of them.  They were new and difficult to evaluate, plus defendants repeatedly denied they had done anything wrong.   Either the plaintiff"couldn't take a joke,"or "she was a nut" and nothing that bad happened or the plaintiff was a bad actor, bad employee, slut, liar or cheat. Quickly, I discovered that juries did not like these defenses.  I got few significant offers, and many good verdicts. Back then, I, and others in the legal community thought talking about settlement was a sign of weakness and the lawyer lacked "balls."   

Then there came a push for alternate dispute remedies, meaning either arbitrations or mediations.  While arbitrations suck, mediations started to make some sense.  I started exploring settlement at a much earlier point the parties were less dug in, less insulted by the depositions and litigation and more likely to want to go one with their lives. As litigation progresses for years and years, people get less patient and more angry.  Trials can be unavoidable, when you get offer or no legitimate offers.   Then going to trial is a much easier decision.

People say no one wins by going to trial.   That's not true. Sometimes people win and win a lot.   The purpose of settlement is to eliminate risk and if the offer is deminimus, why not take the risk?  That's how big verdicts happen. 

Lately, I make one attempt to settle a case early on in virtually every case if I can eliminate my client's stress and turmoil with a fair enough return.  Being a party to a lawsuit is no fun. It can be embarrassing , stressful, and inconvenient. The stress can be almost unbearable for parties.   If I can't reasonably settle the case early on, on I go with litigation.  My clients are brave and most of them can endure these rigors and sometimes cases never settle and the result  ends up being wonderful.  But there sure is risk involved.  I trust juries but it is hard to hand your future to strangers.  

Trials can be fun for lawyers.  I have had several fun trials. Unfortunately, it's the lawyers who have fun and very rarely the plaintiff, who has little control over what happens in Court. One thing we lawyers need to continually remind ourselves is the cases and the trials are not ours, they belong to our clients and our clients' best interest must always come before the lawyers' interest.   Always!