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. http://www.kansascity.com/2013/01/29/4037709/retaliation-complaints-led-eeoc.html 

      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. 

FIGHTING SEXUAL HARASSMENT AND DISCRIMINATION IN MISSOURI

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.

SHOULD I HIRE A FEMALE LAWYER?

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. 

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.

WHEN TO SETTLE YOUR CASE

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!

10 Ways to Enjoy the New Year

Most of the people I know work very hard and can be very serious.  Work, work, work!  Actually, even though this society is replete with lawyer jokes, lawyers are some of the hardest working people I know. We don't take good enough care of ourselves, and then when we "retire" it may be too late.  Here is what I want to do in 2013 and what I would tell others who want suggestions for the upcoming year:

1.  Listen to music you love!  Music is transcending. I have a new pair of really good headphones.  Music can lift even my darkest (and they Can get really dark) moods.

2.  Do something anonymously for someone else.  It's uplifting, but only of you expect nothing in return. 

3.  Exercise - nothing feels better, especially when it is over.  My husband and I have been going to spinning classes for over 5 years.  That is one way to beat the blahs.  Hike in new places. Move!

4. Read!  Read articles, books, fiction and non-fiction.  Learn new things.  Explore. Read junk, if you must, but just take time to read.

5.  Indulge in massages, mani/pedis if you can afford it. If you can't, have a friend rub your neck.  Let your body feel good. 

6. Have sex. (Caveat, I am not promoting promiscuity, but sex is good for the soul.) - My husband will be happy to read this.  

7.  Sing. I am a terrible singer, but I love to sing and I  love to sing loud.  Now, you may need to find a private place like the shower if you have fuddy-duddies around you (like I do).

8.  Say please and thank you. Tip well.  Send thank you cards. 

9.  Live in the moment. Don't wallow in regret or worry about all the things that could go wrong.  Appreciate your time now!!  You may be dead tomorrow. 

10. Don't take anything personally.  It's not about you.  When someone says something "about you," it's really about them. Separate yourself from what others say. Learn from it, if you can, and let it go.  

I hope all of you have enriching and joy-filled years to come.  Happy New Year!

Being an Honorable Person - 6 Easy Rules Reposted

I am republishing this blog posting from September, 2009.  The entry gets a lot of hits, almost more than any other. I am proud of this and wanted to repost, since we are nigh upon a new year:


I am going to take a little departure from talking about cases.  I have and have had many courageous clients.  It's the nature of my business that someone who wants to bring a discrimination case must have a modicum of courage.  These are not the types of cases for the faint of heart.  Today, though, I have been thinking about honor.  It is the courageous, honorable clients whom are the ones I love.

What is it that makes a person honorable?  An honorable person is one who is deserving of respect.  And who deserves respect?  Most of us, including me, have acted in dishonorable ways.  Dishonorable acts include lying, cheating, stealing, betraying, manipulating.  It's easy to be negative.  What does it take to be a truly honorable person, worthy of the respect of others:

1.   Speaking the truth even when it is unpopular, while avoiding needless unkind words;
2.   Being loyal even when it is tempting to be disloyal;
3.   Having empathy, especially with one's opponents and people with whom one has little in common;
4.   Giving with no expectation of receiving anything in return except the joy of giving:
5.   Standing up for what one believes in even when it is unpopular to do so;
6.   Truly being able to forgive others for just about anything.

I know this is a simple list, but it seems fairly comprehensive to me.  When someone needlessly hurts someone else or strives for personal power or personal wealth above all else, it is always a reflection of some underlying conflict in that person.  Unfortunately, people who are hurt by others oftentimes go out and hurt even more people.  Angry people hurt others, while oftentimes not meaning to do so.

So, how does this relate to the practice of law?  The practice of law is a microcosm of the act of living.  We have developed a set of rules with which to operate so that we don't destroy each other.  Law is eminently logical and practical.  People aren't.  It is possible to fiercely promote what one believes in or to defend one's person and principles without annihilating the opponent.  The fiercest advocate can be the gentlest person.  It is not easy to be honorable, but honorable people do not expect perfection.  They are ready to forgive transgressions. Living honorably is the key to being peaceful and content. Not ironically, the best advocate is the one that acts with honor.

Children

I am sure it's obvious, but we have to protect children. I really can't think of anything else. Parents want to protect children. We need to deal with mentally ill violent people in a better way. We need to take care of each other. I found out about what happened in Newtown, Connecticut as I was leaving the kindergarten class at which we volunteer. What happened to those sweet children in Newtown is almost too horrible to consider, but I can't seem to think of anything else about which to write.  Sweet, innocent children, just like  the ones we have all raised, are raising or hope to raise in the future.  We want our children to grow up to be beautiful, happy, caring adults. I am lucky enough to have seen my children grow to adulthood. The parents in Newtown are not.

Wintertime Blues and What's Important

I hate this time of the year. People spend so much money on shit that is meaningless. I suspect this consumerism stems from northern-living Caucasians attempting to stave off depression from excessive darkness and cold weather.  We lose sight in what's important. 

What is really important?  I am sure it is many different things to many different people.  For most of my clients, being courageous and furthering justice is of utmost importance. For a tiny few of them, I suspect revenge and anger motivate them more.  For me, sifting through the legions of people harmed, whether or not illegally, by actions of their employers to find the clients who want to do the right thing for the right reasons becomes increasingly important. When I choose my clients too swiftly and my instincts are bad, it takes a toll on me and makes it harder to focus on what's important. There are people out there who, for whatever reasons which could include a devastatingly painful childhood, broken relationships or whatever, have chips on their shoulders. For those clients, nothing is ever enough. They can no longer trust and believe they are victims time and time again. While they may have understandable reasons for being difficult, I no longer have sympathy for them. They drain me.  I know I am over-simplifying this, but clients who see themselves as victims have no personal insight nor compassion for others.  I am tired of representing people who have holes inside which are impossible to fill.

My job can be wonderful and rewarding, and it can be draining and depressing.  I don't like prima donnas.  Perhaps I don't like the competition as I can be very prima donna-like myself.  This "holiday" season seems to emphasize the materialistic nature of the self-professed "victims" I try to avoid representing. 

So, to get me back on track, I want to re-emphasize what is important to me (not in order of importance), so as to get a bad taste out of my mouth:

1.  Laughter - my brother put a Jim Gaffigan special on yesterday and my sides hurt from laughing.  I love laughing. 

2.  Children - the time my husband and I spend helping at a kindergarten class each week is one of the highlights of my week.  Last night I went to a hockey game and the children danced throughout the game to the music. Children are spontaneous, fun-loving, innocent creatures just like I want to be.

3.  Dogs- we have two sweet, caring dogs with distinct personalities. Dogs are loyal and unconditionally loving. They love you no matter what. 

4.  Family - Loving, caring family.  Family is what is most important to me in life.

5.  Working - Working at a job that I love most of the time for people that I almost always care about and with people, my partners and staff alike, that I truly love.  I don't know I will have the pluck of Gerry Spence to try a case in federal court at the age of 83, but I think I might. Shoot, I have another 23 years to find out.  

During this holiday season, with the increasingly diminishing sunlight and the impending freeze of winter, I want to remember what's really important, and find more reasons to laugh. 

Gay Marriage - A Change Is A Comin'

Why do we want to dictate to others how to live their lives?  Fear? Yes. Insecurity? I bet. Wanting to be in charge?  Sure.  Probably fear of the unknown or fear of one's own sexual feelings contribute a lot to homophobia.

A few years ago, I represented a man, who was gay, in a car wreck. His sexual preference was irrelevant to the case. I produced my client for the deposition and the other lawyer started asking him if he had ever slept with a man. I was outraged. I yelled and screamed objections. I told my client not to answer.  And then I planned what I was going to say to the other lawyer after the deposition and once we were off the record. As soon as he was done, I blurted, "You are a despicable pig!"  He said, "Come on, Lynne, you would have done the same thing."  I would not have done that. My client was very happy I stood up for him. He was my cousin.

When I was growing up, being gay was not easy.  In high school kids made fun of anyone wearing pink and green together because those were "queer colors."  I laughed along with everyone else. Gays were a source of derision. I know so much more, and hopefully am more empathetic now, than then. I didn't think I knew any gays then. Ha!  How deluded I was.

We need to treat gays, lesbians, bisexuals and transsexuals with dignity and afford her equal protections under the law. They need the right to be free from employment discrimination, free to marry, free to live their lives the way they want.  At one time I feared this freedom would never be afforded the LGBT community. Our society moves faster and more justly than I  ever thought possible. And someday, probably sooner than we think, even in Missouri and Kansas, people will be allowed to follow their hearts.  I am hopeful.