Sunday, September 21, 2014

Employers Could Save Billions By Preserving Employees' Civil RIghts

The way our American companies treat their employees, especially in employee civil rights, oftentimes is one of the more foolhardy and ill-conceived ways to run a business.

Take this fairly typical scenario:  a supervisor starts making sexually inappropriate remarks to a female subordinate.  She finally tells her boss to stop.  He doesn't.  She goes to her boss's boss and complains.  The first boss hears about the complaint and starts treating the woman with disrespect, criticizes here performance, writes her up, and makes her job hell and she quits.

The woman goes to a lawyer and files a charge of discrimination with the EEOC.  What does the employer do?  Here are some examples:

1.  Call a high price law firm to make the woman's life hell - checking into her sexual history, stating she is flirtatious or dates others, try to find dirt on her.  Then the law firm defends the case in a "scorched earth" fashion, sparing no expense, billing thousands of hours and ultimately offering nothing or an insulting amount to the woman.

2.  Hold sexual harassment "training" either in person or over the Internet that is universally ridiculed by the employees.  After all, how "politically correct" do they want us to be?  Women who complain are reviled and harassment is kicked up a notch.

These types of reactions can cost the company millions.  The company pays for their high-priced lawyers who prolong the case and bill generally, assigning ten or more staff to work on the case.  The company lives in la la land and believes that their side is the moral side, the one for capitalism.  After all, once you "grow" a business, are you not the king of your castle.  Are not your workers, or at least the ones with whom you cannot relate like women, older workers and workers of different races, in essence the serfs that serve the kingdom.  You are king.  No one call tell you how to run your business.

And then there is the verdict of lost wages, emotional distress damages and the pesky damages you did not consider, punitive damages, which can be in the millions.  When that happens, it's no reflection of how you treat your workers.  It's not reflection of your management's demeaning conduct to the women workers.  Of course, it's just our crazy jury system with juries comprised of stupid people which hate you because you are wealthy.

Sometimes company owners convince themselves that they are the victims.  They are not.  I have a different way that could ;save these business owners oh so much money.  This is what I would suggest:

1.  Do not assume your manager is right.  You can relate to him, but that does not make him right.

2.  Put yourself in the shoes of the employee.  Really get into those shoes.  How would ;you feel if you were her.

3.  If the guy harassed and retaliated against her - own up to it upfront.  I don't care what the lawyers or insurance companies say.  Taking responsibility saves you money and it is the right thing to do. Truthfully tell her - I am sorry.  We will make this right.  (This is probably all it takes to protect yourself from punitive damages.)

4.  Go to the harasser.  If the conduct is bad enough, fire him.  If not, reprimand.  Give all employees, management and non-management alike, extensive training and impress how the training is not to be ridiculed.  Make the employees step into the shoes of the employee who is discriminated against.  Talk about race and how we are all affected by our experiences with race.  Make the training a safe place to talk and complain.  Have professional trainers who understand the human dynamics involved in discrimination.  Repeat training often and show the employees how dedicated you are to eliminating discrimination.  Have professional objective conflict resolution professionals at your disposal to stop problems before they grow.  Dedicate your company to treating everyone, and I mean everyone, with respect.  The bullies get fired.

I could write a book about this, and I hope to do so.  However, the above is a good start.  We could have productive, engaged employees who do not sue their employers.  Morale would be high.  More later.

Monday, September 15, 2014

When Not to Sue Your Boss

Going through a lawsuit, any lawsuit, is a very stressful experience.  The opposing counsel will take your deposition, which can be very stressful.  It is hard to be forced to answer questions under oath even if you sometimes feel the questions are embarrassing or invade your privacy.  The opposing counsel will try to shoot holes in your credibility and perhaps your character.  And, if it is a discrimination case, oftentimes co-workers are afraid to get involved because they need their jobs, too.

Here are some things to consider before you decide to sue for discrimination:

1.  Are you still working at the place of employment?  THINK CAREFULLY ABOUT THIS!!!

    It is very stressful suing a current employer.  If the conduct is bad, most people would be better off quitting, especially if the employee can get another job.  If you don't want to leave, consider that:

        a.  Is the conduct really bad or do I just want them to change and I am frustrated?  Will a visit to HR or the president of the company make a difference?

       b.   Does the company know about what is going on?  If it is sexual harassment, have you clearly complained to someone in charge?

If you can get a situation changed for the better without resorting to litigation, you should try to do that first.  Litigation is a last resort.

2.   Do you think if you sue your employer you will hit the jack pot?  BAD REASON!!!

    Looking got a pot of gold is never the right reason to bring a discrimination case.  People don't like greedy people.  I don't like greedy people.  Few people get rich from suing their employer.  To win an employment case, the jury should see that civil rights and fairness are important to you.  And stopping racism or sexism or ageism must be more important than money.  People who are the most devoted to discrimination cases have a desire to make the workplace better not only for themselves, but also others. Money is not the primary motivator.

4.    Can you prove that discrimination based on your being in a protected class is part of the reason you were damaged.    EVIDENCE IS ESSENTIAL!

   Discrimination, such as racist terms, sexist actions, have to be clear.  That does not mean that the "n" has to be in every case.  There are "code words" that substitute for traditional discriminatory terms.  Some of these are - for racism- lazy, late to work, doesn't catch on,; for ageism - too slow, can't deal with technology, needing newer ideas looked through fresher eyes; and, with sexism - can't make decisions, not authoritative enough, or too nice.

5.   Can you withstand the attacks and stress because you believe that your case could make it better for the company's employees and maybe even for the country as a whole.  THIS IS THE BEST REASON OF ALL!!!

Even though plaintiffs have lawyers usually working on a contingent fee basis, lawsuits are still very stressful, embarrassing and there is no guarantee for success.  Some people are more risk averse than others.  All of these issues should be explained to you when you consult with a lawyer. All lawyers do not work in all areas.  I would recommend employment discrimination lawyers for employment discrimination cases.   Out of the employment lawyers, you should look for lawyers with trial experience in the area of your case.  Surprisingly, many lawyers have had few or no trials.  If you hire a seasoned trial lawyer, not only will you be hiring a professional with experience in evaluating cases, and who is more likely to be respected by defense counsel.

If you have discovered blatant and pervasive discrimination and bigotry, that is when I like to think the fine citizens of Missouri want change. Sometimes we have to do things that are difficult.  It's a matter of character.  When you have the chance to make the lives of other workers less discriminatory, you should do it.   It's the right thing to do.

Monday, September 1, 2014

"It Was My Fault"

A few years ago I was leaving Wichita after a deposition, in my just-purchased new car, talking on the phone to my partner.  While driving down the unfamiliar road, on my cell phone, I notice the sign to the interstate.  I was passing my exit to the right and I was in the middle lane.  As I look to my right, there is a tractor-trailer passing me.  I wait until the tractor, then the trailer, pass ahead of me and swerve my car to the right to cut over to the exit.  Crash!  The truck had two trailers and I rammed into the second one.  Fortunately, I was not hurt, but my right fender and door were bashed in.  I pull over, followed by the truck driver.  As he gets down from the bed of the truck, I instinctively said five words that I have been proud of, "It was all my fault!"  I am a lawyer and I used to defend insurance companies and I know that insurance companies tell their insured not to apologize, not to say much, and certainly not to saw those five words, "It was all my fault."  Yet, when I made my declaration, I felt relieved.  No pretense, no bullshit.  I did it and I was stepping up.  The truck driver smiled at me, asked me if I was hurt, and then helped me with the police officer, who did not give me a ticket, even though I told him, also, that it was my fault.  I got the car fixed, the truck had no damage, and everyone wanted to help. That wreck was a revelation.  When I apologized for my mistake, when I made it clear that it was all my fault, I and everyone else was relieved.  They wanted to help me because I was honest and I said the truth although we all knew that an insurance company would not want me to do so.  The driver and the cop went out of their ways to help me.

I have often thought about the, "It was my fault" way to bring a claim or to defend a claim. If you are a reader of this blog, you know that I represent people who bring claims of employment discrimination. Just like most of us in life, most clients, and most defendants, do not want to admit any fault in the dilemma that occurred at work.  Sometimes, my clients, won't made that they had made a mistake at work, or were tardy, or disobeyed a directive.  My clients want to feel like they did nothing wrong, who doesn't?  But, I know of no one in life who is perfect.

Likewise, the employer, or heaven-forbid a harasser, denies any racist, sexist, ageist conduct. They are never to blame.  Either they did not make the racist comment, or it was a joke, or the plaintiff said things much worse.  No one ever means it and the termination had nothing to do with my client's complaints.

I'm just thinking out loud now, but what would happen if everyone accepted responsibility for the part of the mess they created.  My client might say, "I was late for work.  It was hard for me to get my kids moving and I will make them get up earlier."  The boss might say, "I know that joke was racist and I am embarrassed.  I thought I wasn't a racist, but I need more work.  Let's get training for me and others on this.  I am so sorry."  There can be a whole variety of scenarios, but I hope you catch my drift.  I like people who own up to what they do.  I feel good about myself when I admit mistakes, because making excuses is a lot easier.  

Maybe if we all own up to our imperfections, our mistakes, our biases and bigotry, we could work our problems out at work and reduce lawsuits about unlawful discrimination.  To take matters a step further, what if we spent an afternoon reversing roles with the opposing party, putting ourselves in their positions, understand how they may think, what may really be going on, not merely emphasizing, but figuratively living in their shoes.  If we could lose our fear and insecurity and lose our inhibitions, and go imagine what  is going on with the other side, what things would happen?

I think there is a reason I did not get a ticket, even though the wreck was my fault.  I owned up to what I did.  I have had only a few cases but some where the company essentially says, "Yup, we were wrong.  We are fixing the harassment.  No one should have to go through what she did."  Those are the cases where I have had great satisfaction, although my clients ended up with much less money.  Admitting wrongdoing with contrition eliminates the desire for juries to punish employers.  In fact, if everyone would admit his or her part in whatever happened, I suspect we could get cases settled and people back to work.  We might even begin to put a dent in unlawful discrimination, once everyone saw the other one as a human being like themselves.

We watched the "Railway Man" a movie about a British soldier in Burma who was tortured and water-boarded horribly during World War II.  He was plagued by PTSD and lived a haunted life until he confronted one of the soldiers who had survived the war.  The British soldier planned to kill the Japanese solder, but instead forgave his tormentor.  The Japanese soldier was haunted  by what he and the other had done to the captured and devoted his like to making amends.  He admitted his sins to the British soldier and the British soldier forgave him.
There is such a profound and basic lesson in this story.  Most of us want to forgive others.  We want to be herd and understood.  We want to be treated fairly, but justice is different from revenge.  Revenge brings mo comfort.

I wonder what what happen if we had, instead of mediation, am honest and frank discussion of what really happened from everyone's perspective and we looked into our souls, and decided  what part we played.  Then we admit that part and ask for forgiveness.  What would happen with that lime of thinking in litigation?  I wonder.