Category Archives: Employment Litigation

November 2, 2017

Address the Silence of a Delayed Harassment Claim

By Dr. Ken Broda-Bahm:

Sexual harassment is a constant issue. But sometimes there is relative silence on the subject, and sometimes there are waves of attention. Right now, one of those waves seems to be cresting. With the repeated harassment claims and settlements at Fox News, and the number of women accusing Hollywood producer Harvey Weinstein — a number now approaching triple-digits and including some very familiar names — the focus of attention is broadening to include many other harassers in the media, politics, the arts, and academics. The attention has spawned a “MeToo” hashtag campaign, with an unprecedented number of women from all walks of life stepping forward to publicly share their experiences as a target of sexual harassment or abuse.

In the workplace, harassment is disturbingly common, with one recent report (Rand, 2017) indicating that nearly one in five say they face a hostile or threatening social environment at work. And always, when people come forward days, years, or even decades after the harassment, the question is, “Why did you wait so long?” But as the high-profile scandals continue to receive attention, and especially as more and more women come forward and share experiences that they did not necessarily report or pursue at the time, I believe that the reasons for the silence are becoming more public, and potentially more understood and accepted. We will need to wait to see if attitudinal data bear this out, but anecdotally at least, the general public is getting a more detailed lesson than it has gotten in the past on why harassment targets are sometimes silent. The issue is broad enough to potentially change the climate for plaintiffs and defendants in workplace harassment claims. In this post, I will look at some of the reasons getting greater attention, and the messages they carry for litigation.

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August 21, 2017

Expect Support for Civil Litigation to Vary by Race and Social Status

By Dr. Ken Broda-Bahm:

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Black Americans, especially but not exclusively those on the lower-economic rung, often have a different experience with police and the justice system. That difference makes them more likely to believe they’ve been discriminated against, or to believe more generally, that they get greater attention and less protection from the law. That engenders a general distrust of the criminal justice system which, unfortunately, is a large part of what drives racial bias in strikes by prosecutors. I have written recently about ways to address race-based strikes, but an additional interesting question is whether skepticism toward the criminal justice system extends to skepticism toward the legal system in general, including the sphere of civil litigation. After all, following the Civil Rights Acts, civil litigation now serves as one of the principal ways of enforcing anti-discrimination in the workplace. If the groups that are more likely to face discrimination are also less trusting in the legal tools meant to address it, that would be an important limit on the law’s effectiveness.

Not many studies have examined attitudes toward civil litigation, but a recent study has taken a look. McElhattan, Neilsen & Weinberg (2017) research looked at the views of Latino, African American, and White participants, specifically looking at two hypotheses: A “vigilance hypothesis,” suggesting that minorities are more sensitized to potential discrimination and therefore more likely to see it than Whites, and a “cynicism hypothesis,” suggesting that non-Whites are less likely to favor using the law by filing a claim. Their study found support for one hypothesis, but not the other one. It is an interesting conclusion with some implications both for avoiding litigation in the workplace and for the voir dire of potential jurors on attitudes toward civil litigation.   Continue reading

May 18, 2017

Avoid the Telltale Signs of Pretext

By Dr. Ken Broda-Bahm: 

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Why did President Trump fire FBI Director James Comey? As of press time for this blog post, the answer is that it depends on who you ask and what day, and sometimes what time of day, you ask them. A detailed timeline from the New York Times focuses on the shifting rationale, but the broad outline is that on Tuesday, May 9th, the surprise termination letter said the reason was to “restore public trust and confidence” in the FBI, and referenced that the President had accepted the recommendation of  Deputy Attorney General Rod Rosenstein, who grounded the advice in Comey’s poor handling of the investigation into Hillary Clinton’s email during the presidential campaign. Vice President Mike Pence and many others repeated that explanation. Then the next day, spokesperson Kellyanne Conway seemed to contradict that in an interview with Anderson Cooper saying it had “nothing to do with the campaign from six months ago.” Then one day later, in an interview with NBC’s Lester Holt, Trump himself seemed to abandon both explanations, criticizing Comey (some would say, ironically) as “a showboat” and “a grandstander,” the President said that it was his decision, a decision which was made before he received Rosenstein’s letter, and a decision that was based on Comey’s pursuit of the “made up story” on Russian involvement in the presidential campaign.  

Of course, in one sense, the explanation may not matter: Whatever the optics, the President does have the power to terminate the FBI Director. However, as I’m watching this all play out in the news cycles, it does strongly remind me of an employment litigation situation where unclear and inconsistent statements surrounding performance and termination raise the specter of that dreaded word, “pretext.” A company with the full right to fire someone for a good and legally defensible reason can still face the full force of a discrimination or retaliation claim if that good reason lacks credibility and is deemed a pretext instead. Ultimately, it ends up being a question for the juror or the arbitrator: Is the proffered reasons the real reason? On that subject, the Comey termination and the communication surrounding it serves as a good example of what not to do when offering an explanation for termination or other adverse actions in the workplace. In this post, I will look at a few of the main themes contributing to that list of “Don’ts.” 

Don’t Just Seek Refuge in Vagueness

President Trump’s letter to director Comey was on the short side: only about half a page. The language was very general. Employment litigators and inside counsel will sometimes encourage that brevity: Less to say, less to worry about. There is something to that, of course, but when the communication is not just brief but also abstract, then it becomes a canvas upon which an adversary can paint in the details of their own story. Trump’s letter fueled questions on the reasons for dismissal because it was general. It permitted speculation because of what it didn’t say.

In employment actions, effective communications from the company will be brief and to the point, while at the same time clear and substantive. Even “at will” terminations should be accompanied by a rationale, since your defense might someday require that you had a valid nondiscriminatory reason. New York Attorney Peter Panken advises “Making that reason explicit will guide choices consistent with that reason and, if there is a lawsuit, avoid the appearance of pretext.”  

Don’t Change the Story

Donald Trump’s team seems to have been surprised by the level of attention the action received, and had apparently done only minimal work on what the public message should be. As a result, people seemed to be winging it at a time when it was receiving wall-to-wall coverage in all of the major news networks. In that setting, tiny differences in messages would have been noticed, but due to the apparent lack of coordination, there were big differences.  

In employment cases, that inconsistency can be a big problem, since case law indicates that inconsistency itself is evidence of pretext. Iowa attorney and professor Deborah Neyens writes in ToughNickel“If the employer doesn’t stick to its original story as to the reason for the adverse action and later comes up with different or additional reasons, this is evidence of pretext that will shoot holes through the employer’s defense.” In failing to stick with the original story, it may not just be a matter of conscious or unconscious shifts, but simply the fact that more than one person has shared their views on it, and those communications will naturally differ in content and emphasis. And it is not simply the public reasons that matter, but everything discussed in discoverable documents and emails. So the best advice for companies explaining adverse actions (and the advice team-Trump maybe could have used): Decide on the rationale, make it clear, make it honest, and make sure everyone is onboard. 

Don’t Permit Off-Message Comments from the Top 

In the case of Comey’s termination, two days after the event, it seemed like those around Trump had (mostly) settled into an explanation: The President had taken advice from a respected deputy AG, and it had nothing to do with ongoing investigation. But then, Trump himself upended that card table in his interview with Lester Holt. “Oh, I was going to fire regardless of recommendation,” he said, “he made a recommendation but, regardless of recommendation, I was going to fire Comey.” As the interview hit the airwaves, you could almost hear the surrogates slapping their foreheads and asking, “Now what?” 

There are, of course, parallels to this in employment cases. For example, the human resources director might have one message while the boss has another. Or the CEO, the one who was far too busy for the witness preparation meetings, goes completely off message in the deposition. Even if that difference in content is simply a sign of a lack of direct involvement and knowledge, fact finders can be expected to give much greater emphasis to the boss’s words. So when forming and communicating a consistent message, everyone being on message means everyone: especially those at the top. 

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Other Posts on Good Ways to Avoid Employment Litigation: 

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Photo credit: 123rf.com, used under license

February 9, 2017

Take a Broader View of Workplace Harassment

By Dr. Ken Broda-Bahm: 

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It is one of the earliest and most heartbreaking tactics that children learn: Because social connections are powerful, taking those connections away is a weapon. So kids are left out, not included, not talked to, ignored. Ostracism from one’s peers may be a passive form of aggression, but it is a painful form all the same. And, like most of the other battles from the playground, it doesn’t end with childhood. Based on some recent research, it continues in the workplace, and it does so at a level that managers and attorneys may not fully appreciate. The research comes from a survey of 3,400 American workers in a number of different types of companies. According to the research, summarized in a recent Psyblog post, active bullying is a problem in the workplace, but the greater problem is ostracism. “Compared with those who had experienced harassment,” the piece concludes, “those being ignored felt more inclined to quit their job, less connection to their job and had a greater number of health problems.”

That implies the need for a broader view of workplace aggression and the full spectrum of factors that can turn someone into a whistle-blower, a plaintiff, or simply an ex-employee. Lawyers, and managers who are informed by lawyers, might be putting most of their focus on active harassment and missing other aspects of a company culture that can be just as destructive, or more so. I can imagine a manager trying to resolve a dispute by saying, “Can’t you just ignore him,” believing that silence means peace and a return to work. But what the research indicates is that silence can be a form of workplace conflict as well, and perhaps the worst form of it. Workplace ostracism deserves to be considered when thinking about harassment, retaliation, constructive discharge, and hostile environment claims. In this post, I will take a look at the research along with a few implications. 

The Research: Ostracism as Harassment

The study (O’Reilly et al., 2014) focused on a comparison of overt and active harassment, or bullying, with more subtle forms of ostracizing. The conclusion is that workplace bullying is indeed a big deal. In fact, fully one third of the 3,400 respondents had been bullied at work, and one in five felt they were forced to quit a job due to bullying. 

But ostracism emerged as an even greater threat to workplace satisfaction. This was in spite of the perceptions of the respondents, who tended to feel that ostracism is acceptable, particularly if the alternative is bullying. But the ostracized worker tended to feel less connected to work, reported more health problems, and when measured three years after the initial survey, was more likely to have left the job. Interestingly, those who reported being bullied at work were no more likely than other workers to have left, but those who were ostracized had a better chance of being an ex-employee by that point.  

As author Sandra Robinson states, “We’ve been taught that ignoring someone is socially preferable — if you don’t have something nice to say, don’t say anything at all. But ostracism actually leads people to feel more helpless, like they’re not worthy of any attention at all.”

The Implications: Broaden Your View

There are three places where that broader view should find a practical implication. 

Broaden Your View in the Workplace

Building a positive culture within the company is important to effective performance and also helps to reduce liability. Workplace policies and training programs, however, should focus on all the factors that can create dissatisfaction, and not just overt harassment and bullying. “There is a tremendous effort underway to counter bullying in workplaces and schools, which is definitely important,” Sandra Robinson says, “But abuse is not always obvious. There are many people who feel quietly victimized in their daily lives, and most of our current strategies for dealing with workplace injustice don’t give them a voice.”

Broaden Your View in Claims and Defenses

Legal definitions of workplace harassment can be more narrow, but they can also be defined by their effects. In other words, actions that are reasonably perceived as threatening and hostile, even if they are not intended that way, can fall under the definition of harassment. This research clarifies that the effects of ostracism can be just as bad or worse than the effects of overt harassment. So plaintiffs ought to consider that in fleshing out their claims, and defendants ought to take it seriously as well. 

Broaden Your View in Voir Dire

Potential jurors bring past experiences into legal cases. This can be particularly true in employment cases where nearly every juror will draw upon their own background in the workplace. In that context, the volume of experience that the survey uncovered is surprising: one third had been bullied and 20 percent feel they’ve been forced to quit a job. So ask, not just whether the venire member has ever been part of a lawsuit, or whether they have ever filed a complaint at work. Instead, ask whether they have ever been in circumstances where they have felt that they had problems continuing in a work situation, and if so, what circumstances. Jurors understand that they’re supposed to set all of that aside…but you don’t want to necessarily trust them when they say that they can. 

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Other Posts on Workplace Communication: 

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O’Reilly, J., Robinson, S. L., Berdahl, J. L., & Banki, S. (2014). Is negative attention better than no attention? The comparative effects of ostracism and harassment at work. Organization Science, 26(3), 774-793.

Image credit: 123rf.com, used under license

July 28, 2016

Dance Like No One is Watching; Email Like It May One Day Be Read Aloud in a Deposition

By Dr. Ken Broda-Bahm: 

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The credit for the clever title goes to Olivia Nuzzi, political reporter for The Daily Beast, who tweeted that quotation out following the email hack releasing nearly 20,000 of the Democratic National Committee’s emails just ahead of their national convention. The result of several intrusions, which seem to bear a circumstantial connection to Russian intelligence agenciesthe WikiLeaks email dump served as an embarrassment to the committee, belying their earlier claims to neutrality in the primary battle between Hillary Clinton and Bernie Sanders, and prompting the swift resignation of DNC chair, Debbie Wasserman Schultz, on the eve of the convention. 

The worst of the emails, detailed in the Washington Postcarry a few important lessons on how emails shouldn’t be used. Every employment lawyer — and a fair proportion of lawyers in other areas of litigation — know that the candor and the presumptively private, but not really private, nature of email communications can often cause problems in litigation. People write and send email as if they are in a personal bubble, but what feels good at that moment behind the keyboard can often sound much worse months or years later when it is presented in deposition or trial. In truth, the only truly confidential emails are those between you and your attorney. And given the existence of hackers and the risk of accidental forwards and reply-alls, even those should not be considered immune from possible release. If employees took this title to heart, and emailed as if they were writing text that would someday be read aloud in a deposition, then opposing parties would have a lot less to work with. In this post, I will use the example of the DNC hack and share five good rules for litigation-safer email communications.  

 

1. Remember Your Role, and Stay in Character

The recurring theme in the DNC emails is that the correspondences, including Wasserman Schultz’s, were acting likes fans of Hillary Clinton and not acting consistent with their claimed neutrality during the party’s primaries. There are other examples of slips in character. For example, in May after the Sanders campaign prematurely announced that there was an agreement for another debate in California, DNC Communications Director Luis Miranda replied to other staff, simply, “lol” (that means “laugh out loud” for the non-texting generation). Role consistency is important in litigation contexts as well. In dealing with a failing employee, for example, a HR director’s role is to help the employee come into consistency with what the company needs, and then to reluctantly terminate only if those efforts fail. Any communications that instead convey that the director is simply providing foundation for future termination, or “working them out,” are communications that will help a future plaintiff. 

2. No Venting

Email is a good tool for conveying information and facilitating discussion. It is not a good tool for just blowing off steam. Following an outburst at Nevada state’s Democratic convention, Debbie Wasserman Schultz complained that Sanders’ campaign manager, Jeff Weaver, was a “damn liar,” and added that it was “particularly scummy that he barely acknowledges the violent and threatening behavior that occurred.” That communication serves no function other than allowing Schultz to get it off her chest. For employees, and particularly for managers, a good rule of thumb is this: If you feel the need to vent, either let that moment pass, or pick up the phone if it doesn’t.

3. No Private Plans

If the planning is specifically intended to be outside the awareness of the public or some specific group, then it is probably better to make those plans in person or by phone. When DNC Chief Financial Officer Brad Marshall suggested the possibility of planting an individual at a rally to ask Sanders whether be believes in God or is an atheist, because “My Southern Baptist peeps would draw a big difference between a Jew and an atheist,” that rightly comes across as plotting. It is a somewhat dirty trick from one’s own party, and it doesn’t help that the email creates a record of the DNC considering active measures to thwart one of its candidates and help another before the voters have decided. If a plan is truly meant to be private, then it probably doesn’t belong in an email exchange. 

4. Don’t Engage in the Very Behavior You Might be Accused of

When management and human resources discuss the reasons they should use for a termination via email, that can end up sounding a lot like a pretext. In the event that a terminated employee is likely to allege that there is a vendetta, don’t create emails that sound like a vendetta. When the DNC faced repeated allegations from the Sanders camp of coordination between the Committee and its favored candidate, you had the campaign lawyer of that candidate Marc Elias offering, “My suggestion is that the DNC put out a statement saying that the accusations [of] the Sanders campaign are not true.” So that can end up sounding like a “Let’s deny it,” when the “it” is exactly what is happening over email. 

5. Watch Your Language

When Obama was asked to travel across town to help the party pick up a $350,000 donation and replied that his schedule didn’t permit it, DNC mid-Atlantic and PAC Finance Director Alexandra Shapiro replied to other staff, “He really won’t go up 20 minutes for $350k?” “THAT’S f—ing stupid.” Helpfully, the DNC National Finance Director Jordan Kaplan responded, “Or he is the President of the United States with a pretty big day job.” Great advice: Review before you hit send, and ask yourself, “Is it professional?” And maybe add, “Is it necessary?” and “Is it helpful?”

During World War II, there was a government message to the military and civilian population alike that, “Loose lips sink ships.” In an age of email, perhaps we should update that phrase in a way that the DNC should take to heart: “Loose fingers? The effect lingers.”  

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Other Posts Bearing on Employment Litigation: 

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Image credit: 123rf.com, used under license

Debbie Wasserman Schultz

February 22, 2016

Understand the Whistle-blower

By Dr. Ken Broda-Bahm: 

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The Equal Employment Opportunity Commission (EEOC) has released its 2015 Enforcement and Litigation Data, and one of the items that stands out is that the greatest number of charges filed are in the category of retaliation. Continuing a trend from prior years, the data show that almost half – 44.5 percent — of the charges filed were for retaliation. This is an important fact: The lion's share of claimed threats to equal opportunity are not from discrimination itself, but from the perception of adverse treatment of those who report on law and policy violations, including discrimination. That raises a question that is critical in today's employment law contexts: How should companies treat whistle-blowers? A rock solid answer is, "Don't retaliate." Add to that, "And be very clear about any actions that could be perceived as retaliatory." But there is more nuance to it, and that nuance also applies to the issue of how whistle-blowers should be assessed and addressed in litigation. Both sides need to resist the lure of an oversimplified view of the whistle-blower who, to the plaintiff, might be a noble self-sacrificing hero, and to the defense might be a divisive malcontent seeking excuses for a poor employment record. 

There is probably more to it than that. A recent research article provides some insight into that nuance. Entitled, "The Psychology of Whistle-blowing" (Dungan, Waytz & Young, 2015), the article comes from a group of psychology and management researchers from Boston College and Northwestern University. "From one perspective," they write, "whistle-blowing is the ultimate act of justice, serving to right a wrong. From another perspective, whistle-blowing is the ultimate breach, a grave betrayal." Relying on moral foundations theory, they conducted five studies showing that whistle-blowing represents a tradeoff in two fundamental moral values: fairness and loyalty. Individuals and situations emphasizing fairness cause whistle-blowing to be more common and more supported, and individuals and situations emphasizing loyalty cause whistle-blowing to be less common and less supported. So the critical determinant in whether the whistle-blower emerges as a hero or a snitch depends on whether the narrative frame prioritizes loyalty or fairness. In this post, I will take a look at some implications of that tradeoff for companies, for plaintiffs, and for defendants.  

For Companies: Cultivate a Culture of Criticism

My focus in this blog is on litigation, but sometimes the best litigation strategy is litigation avoidance. Companies already understand the need for policies that don't just prohibit discrimination, but also prohibit the adverse treatment of whistle-blowers. But it is not enough to just allow whistle-blowing, or even to inform workers of that protection. Instead, the researchers report that it comes down to a need for a culture that supports internal criticism across the spectrum of matters large and small. They share research showing that whistle-blowing can either increase cooperation and reduce selfishness within the group, or it can increase dissent and denigration, reducing group harmony.  The difference comes down to group culture. I have written previously that fighting within your team leads to better decisions (and that applies to law firms and trial teams as well). But for organizations looking to reduce the threat of equal opportunity lawsuits, it means creating a culture that welcomes criticism. The authors suggest, "To motivate a broader swath of individuals toward whistle-blowing, organizations might focus on building the kind of community that values constructive dissent while maintaining group loyalty."  

For Plaintiffs: Address the Fairness-Loyalty Tradeoff

Employment plaintiffs usually understand that they cannot afford to take the credibility of a whistleblower at face value. The same dualism that suggests that a whistle-blower could be either a noble hero or a discontented traitor exists on the jury as well. In order to maintain the image of their client, plaintiffs need to play up the "fairness" theme and play down the "loyalty" dimension. Or alternately, your narrative can frame the whistle-blower's actions as a larger kind of loyalty: A fealty to the highest ideals of the company, not necessarily to its current leadership. 

For Defendants: Make It "Less Noble, More Normal" 

Defendants might benefit from complex feelings toward the whistle-blower. At the same time, generally the last thing a defendant would want to do is to explicitly play the loyalty card. Appearing to fault the employee for breaking ranks makes the company seem like a criminal enterprise. Instead, seek to normalize the act of whistle-blowing. If the company has embraced the advice I share above, then they should be able to point to several features of the company's policies and culture that don't just allow whistle-blowing, but positively encourage it. The message should be that this is not a uniquely noble act on the plaintiff's part, but is instead something that we expect of all our employees. And the fact that a claim is made means that we need to take it seriously, but it doesn't mean the claim is correct.  

Ultimately, the complexity of our views of whistle-blowers is a reminder that court cases are not just about claims, evidence, and the law. They're also about a story, and how each of the parties fit within that story's moral frame.

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Other Posts on Employment Law:

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Dungan, J., Waytz, A., & Young, L. (2015). The psychology of whistleblowing. Current Opinion in Psychology, 6, 129-133.

 

January 1, 2015

Top Employment Posts

By Dr. Ken Broda-Bahm: 

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For the average juror, their daily life often has very little to do with the world they are introduced to in trial. But for most jurors, there is one type of case where those two worlds strongly interact: the employment case. At least for the great majority that are or have been employed, it is nearly impossible for them to set aside their own experiences as an employee — and, for many, their own experiences as an owner, manager, or boss. Those experiences provide a strong and durable context jurors will use to evaluate both the plaintiff’s and the defendant’s actions. For this, the third post in what I’ll call “The Vacation Series,” I would like to look back on seven of Persuasive Litigator’s top employment posts. Here they are:  

6a01156e439be2970c017d3c2bac33970c-320wiRealistically Compare Your Employment Fact Finders

Imagine a typical employment discrimination case, subject to all of the ambiguities of human motivation. To the plaintiff, it is a story of good if not exceptional work performance cut short by a decision to terminate based on race, gender, age or disability. To the defendant, it is a story of enforcing job expectations broadly on all employees, including those who happen to be in protected categories. Given that a biased motive is rarely declared, it generally needs to be inferred from the circumstances. That act of inferring can invoke many of the subtleties of the fact finder’s world-view, attitudes, and bias. But the question is, who decides? The recent history of employment litigation is a history of shifting fact finders. In the early days of Title VII, it was judges. Then after the Civil Rights Act of 1991, the door was open for employment plaintiffs to seek verdicts and damages from juries. More recently, as employers have moved to mandatory arbitration clauses, the dominant fact finder has changed yet again. Continue reading

6a01156e439be2970c016766c64a7b970b-320wiTreat Your Terminations as “For Cause” (Even When They’re “At Will”)

Here is a piece of advice that works not only as a trial message, but also as a strategy for avoiding trials in the first place: When someone loses their job, make sure it is for reasons that meet the legal tests, even when those tests aren’t legally required. For in-house attorneys or HR personnel, that can mean functionally treating employees as “for cause” even when they might be “at will.” When an employer faces the need to let an employee go, and the threat of litigation in response is either real or implied, it is only natural for the company to want to wrap itself in cleanest available defense. On that score, it is helpful to the company that the vast majority of American employees are “at will” employees, meaning that the relationship may be ended by either party for any reason, as long as that reason isn’t illegal. That last caveat, however, provides quite a bit of wiggle room for a former employee/plaintiff to argue, for example, that a termination was discriminatory, violated an express or implied contract, or ran afoul of an implied covenant of good faith and fair dealing. That means that in practice, juries, judges, and arbitrators will generally take a close look at the equities of the result. But the role of fairness isn’t always simple. In this post, I take a look at some of the factors that affect that perception of fairness, including the seven tests of just cause.  Continue reading

6a01156e439be2970c015392d60b41970b-320wiTake a Note From an Anonymous Law Firm: Don’t Look For Discrimination if You Don’t Intend to Do Anything About It

A good piece of advice for employers:  If your habit is to sweep things under the rug, then don’t commission a study to look under the rug.  Last Thursday, the ABA Journal released a fascinating report with important implications on the role of research, the risks of discrimination, and the occasional absence of a self-protective instinct exhibited even by a law firm.  Its name protected by a confidentiality agreement, a Wall Street law firm with national and international offices hired a consultant, M.J. Tocci, to look into its evaluation procedures involving 268 junior attorneys.  In a firm where near-perfect scores are required for promotion to partnership, Tocci found the women received significantly lower scores.  If that was explained by the women simply being less effective, you would expect to see the same difference in the narrative comments that accompanied the scores, but you don’t.  In some ways, in fact, the women’s narratives were better. So what is happening?  The researchers concluded that gender bias is indeed alive and well at this firm, and playing a dramatic role in limiting the partnership opportunities for female associates.  But the real kicker is this:  What does the firm plan to do about it?  Absolutely nothing. Continue reading

6a01156e439be2970c0147e3a0d01c970b-320wiAssess Your Juror’s Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part One)

The situation has been noted with a surprising frequency:  Instead of filing in quietly to fulfill their civic duty, prospective jurors in voir dire have expressed a deep frustration over the litigation process and a deep concern over serving.  Most recently, an article in the National Law Journal noted this month that in some cases, prospective jurors have been on the verge of open rebellion, and many have suspected that economic pressures have played a very significant role.  After all, for many of those who have a job and fear losing it, the prospect of being absent from work for several weeks while sitting in judgment over someone else’s fortunes doesn’t necessarily sit well.  As trial consultants who have sat in recent trials around the country, we’ve certainly noticed a few trends: Continue reading

6a01156e439be2970c0147e3ab245d970b-800wiVoir Dire Potential Jurors on Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part Two)

Last week, in part one of this post, I wrote about the increasing tendency for jurors to express irritation and insecurity at the prospect of serving out their jury duty, a greater proportion of hardship claims, and some recent research showing that the resulting changes in the jury pool could lead to a more defense friendly climate.  The other lesson to be taken from this information relates to voir dire strategy for those who are not eliminated for cause.  Where the circumstances allow, you should sensitively question your potential pool on their economic vulnerability.  In an employment defense, for example, you will want to look for several risk factors indicating that your potential juror is economically vulnerable:Continue reading

6a01156e439be2970c0163014179ea970d-320wiDon’t Say Nothing: The Limitations of “No Comment” as a Litigation Crisis Strategy

A Google search on the phrase “no comment” appearing in recent news yields thousands of hits — various individuals and organizations responding in time-honored fashion to some sort of crisis.  Recently, for example, after CNN Analyst Roland Martin had his finger too close to the Tweet button during the Super Bowl and broadcast a homophobic response to David Beckham’s underwear advertisements, the network responded to mounting cricitism and petitions with “no comment” for several days before ultimately suspending Martin.  While careful decisions can require delay, the problem in a sustained “no comment” approach is that the silence fuels doubt and uncertainty while allowing the other side of the story to hold the floor uninterrupted.  Given that you can’t “not communicate,” your silence is inevitably interpreted in a variety of ways, most of them quite negative.  Continue reading

6a01156e439be2970c017ee53dc52b970d-300wiTreat Knowledge as Intent

It is one thing to know an act has a chance of resulting in harm, and it’s another to intend that harm to occur. Or is it? Consider the example of a company that is aware of a small risk of electric shock if repairs are done without powering off a piece of equipment. If the company sends an employee to make that repair anyway, would jurors say that company intended the injury to occur? It turns out, it depends on how you ask the question. A new study in the Journal of Empirical Legal Studies (Mueller, Solan & Darley, 2012) looked at exactly that scenario and found that, while research participants were generally able to see distinctions between varying degrees of liability (e.g., negligence versus willful disregard and intent), when asked to make a binary choice regarding intent, they tended to treat just about any level of knowledge as proof of intent. The tree of knowledge, in other words, bears the fruit of intent. Continue reading

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Photo credits: See individual posts

November 19, 2012

Treat Knowledge as Intent

By Dr. Ken Broda-Bahm: 

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It is one thing to know an act has a chance of resulting in harm, and it’s another to intend that harm to occur. Or is it? Consider the example of a company that is aware of a small risk of electric shock if repairs are done without powering off a piece of equipment. If the company sends an employee to make that repair anyway, would jurors say that company intended the injury to occur? It turns out, it depends on how you ask the question. A new study in the Journal of Empirical Legal Studies (Mueller, Solan & Darley, 2012) looked at exactly that scenario and found that, while research participants were generally able to see distinctions between varying degrees of liability (e.g., negligence versus willful disregard and intent), when asked to make a binary choice regarding intent, they tended to treat just about any level of knowledge as proof of intent. The tree of knowledge, in other words, bears the fruit of intent. 

The challenge with any concept as subjective as “intent” is that jurors and judges end up with few, if any, foolproof cues, and instead they need to rely on their own projections. In the study, participants were asked to look at a scenario and assign consequences for the employer in deciding whether its acts were intentional or not. In that setting, the researchers found that participants’ “‘hot’ moral judgments play a larger role than do their ‘cold’ cognitive categorizations.” That means that the ability to understand a legal distinction won’t always translate into a willingness to apply that distinction in practice. This post takes a look at this interesting new study on the ways jurors handle intent, and provides some practical advice for handling the distinctions in intent required by your case. 

The Studies

A pair of Princeton psychology professors and a Brooklyn law school professor (Mueller, Solan & Darley, 2012) used the fact pattern mentioned above: A company may know from past experience that repairs made on a machinery line that is still “hot,” or powered on, have a risk of causing an electric shock, but they send the employee to make the repair anyway. In providing participants with this scenario, the researchers varied the employer’s state of mind (intentional, knowing, reckless, negligent, or innocent), the degree of risk the employer was aware of, and the employer’s knowledge of specifics (the who, how, and when of the injury). Testing these elements across five studies (with samples varying from 100 and 125), the participants were subsequently surveyed on their perception of the most appropriate legal category, made a binary choice of whether the company’s actions were intentional or not, and awarded economic and noneconomic damages. 

The Main Finding (and Recommendation)

Finding: The study’s results both support and challenge the legal expectation that jurors correctly apply the different categories relating to intent. On the reassuring side, the researchers did confirm that participants were reliably able to make the explicit distinctions in state of mind that correspond roughly to the experimental scenarios. That is, they were able to correctly separate “negligence” from “reckless disregard” and from “intent.” On the challenging side, however, the researchers found a very low threshold for knowledge when the mock jurors were asked to make the simple determination of whether intent was present or not. In other words, knowingly placing someone at risk is practically the same as committing intentional harm. Of course, this finding can be viewed as consistent with the civil law expectation that a person acted intentionally even when the person didn’t desire the injury to occur, but nonetheless knew that the actions were likely to result in harm. But the degree of likelihood is the challenging aspect. “Once [jurors] attribute even a small amount of knowledge to that risk to the wrongdoer,” the researchers note, “they impose liability equivalent to that for intentional wrongdoing.” This may be a motivated judgment in the sense that jurors might understand that, though another cognitive category might be more fitting, a deserving plaintiff may not be compensated unless the behavior is intentional (for example, in a workers’ compensation setting).

Recommendation: For the most part, this finding confirms the intuition that both sides tend to have about verdict forms. Plantiffs tend to want it very simple (e.g., “Should they pay?” and “how much?” might be a preferred formulation), while defendants want things more broken out, with abundant opportunities to say “no” along the way. More specifically, though, this finding suggests that in cases involving intent, plaintiffs should fight for a single question focusing on whether the defendant’s actions were intentional or not, without over defining that concept or the elements contained, at least not in the form itself. Defendants, on the other hand, should ask for an interrogatory-style verdict form which give jurors a multiple choice that includes a spectrum of choices including simple negligence without intent.

Other Findings (and More Recommendations)  

“How” Matters, But “Who” and “When” Don’t. The researchers also found that in varying, more specific types of knowledge about likely harm, there were some important differences. Specifically, they found that it didn’t tend to matter whether the employer superficially knew who was going to be harmed or when that harm would occur. If someone was likely to be injured at some point in the future, that was enough to make them comfortable with a finding of intent. In contrast, it was important whether the employer knew how the injury was likely to occur. When there is only general knowledge about possible harm in the future without a specific mechanism, that is unlikely to be seen as intent. It is like the car maker who knows that a certain percentage of the cars it sells will be involved in deadly accidents. But if you add a mechanism (e.g., in a certain percentage, the brakes will fail) then you have intent. 

What this suggests for the defendant is that, ideally before trial, they should be very conscious of any knowledge that points not just to future harm, but to a mechanism of future harm. When you know the “how,” that creates a responsibility to do something about it, a failure to take action invites a finding of intent. 

Responsibility Is Independent of Both Negligence and Intent. Research participants believed that the employer should take responsibility for the medical expenses of the injured employee regardless of the employer’s state of mind. Whether the employer was innocent, negligent, reckless, or intentional, it seemed only right that they would take care of a worker injured on the job. Specifically, every one of the research participants in the “intentional,” “knowing,” “reckless” and “negligent” conditions awarded medical expenses to the worker, and fully 80 percent of those in the “innocent” condition did as well. 

The implication of this is simple, but very much at odds with what the law tells you: Don’t assume that legal responsibility kicks in only upon a finding of legal liability. Instead, jurors expect an ethical party to take responsibility at some level for what happens on its watch. That means, if at all possible, pay for the care and don’t quibble. Few jurors would fault a company or treat it as an admission if an employer is making sure that one of its own is fully cared for after being injured on the job. 

Of course, the broader point hearkens back to something that we frequently advise: When accused, don’t simply defend. Instead, build a positive message by speaking to the moral sense as well as the legal sense of your fact finders.  

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Other Posts on Intent: 

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ResearchBlogging.org Mueller, P.; Solan, L.; Darley, J. (2012). When Does Knowledge Become Intent? Perceiving the Minds of Wrongdoers Journal of Empirical Legal Studies, 9 (4), 859-892 DOI: 10.1111/j.1740-1461.2012.01269.x

 


Photo Credit: Korom, Flickr Creative Commons (painting held by Madrid Museo Nacional del Prado)

September 20, 2012

Realistically Compare Your Employment Fact Finders

By Dr. Ken Broda-Bahm 

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Imagine a typical employment discrimination case, subject to all of the ambiguities of human motivation. To the plaintiff, it is a story of good if not exceptional work performance cut short by a decision to terminate based on race, gender, age or disability. To the defendant, it is a story of enforcing job expectations broadly on all employees, including those who happen to be in protected categories. Given that a biased motive is rarely declared, it generally needs to be inferred from the circumstances. That act of inferring can invoke many of the subtleties of the fact finder's world-view, attitudes, and bias. 

But the question is, who decides? The recent history of employment litigation is a history of shifting fact finders. In the early days of Title VII, it was judges. Then after the Civil Rights Act of 1991, the door was open for employment plaintiffs to seek verdicts and damages from juries. More recently, as employers have moved to mandatory arbitration clauses, the dominant fact finder has changed yet again. Some dimension of choice remains, particularly for defendants, and that choice is important. In this post, I take a look at the question from the defendant's point of view to share some of what we know on how judges, arbitrators, and juries compare in the context of employment cases. 

Initially, you might think that we can get that answer just through a simple statistical look at who wins most often in each venue. 

Isn't It Just a Matter of Statistics? 

After all, what is easier than looking at outcomes? And indeed, there have been many analyses over the years comparing results in different venues. Here are some representative comparisons.

First comparing judges versus juries, the Department of Justice's "Civil Trial Cases and Verdicts in Large Counties" provides the initial impression that judges are much better friends to employers than juries. According to this comparison, plaintiffs win nearly half the time in front of juries, but only a quarter of the time in front of judges. In addition, the jury tends to award three times the damages. 

Juries v judge

When we add arbitration to the mix, the data tend to show that arbitrators, perhaps predictably, are more like judges than juries. An analysis this year (Colvin & Pike, 2012) confirms the perception that, for the employer, arbitration is best and state courts are worst. 

Lit v arb

This is compelling data, but at the same time, it arguably leaves out the most important factor: case selection. A plaintiffs' attorneys who have a sympathetic case with the potential for a high verdict are unlikely to surrender their claim to a jury trial, and may even try to fight a mandatory arbitration clause. In addition, those cases on a litigation track have options for weeding out the cases with little or no merit (e.g., summary judgement), and extended schedules can create more opportunity and incentive for settlement. What that means is that the cases that do make it all the way to trial are different. By and large, they are probably much better cases with much more at stake. 

In that context, it is no surprise that cases in litigation would have a higher plaintiff win rate and higher median damages. That by itself does not mean that juries are per se worse for employers in comparable cases. To get to that question, we need to look at a few other perceived differentiators between juries, judges, and arbitrators. 

Should I Avoid Juries Because They're Too Obsessed with Fairness? 

The perception is that, compared to the legally-trained fact finder, juries are likely to approach the case first and foremost as a morality play on whether the employer was fair or not. There is some basis for believing that jurors are more likely to put ethics over the law. In our annual surveys, we have asked over the years the question, "When personal ethics and law conflict with one another, which should you follow?" Typically two-thirds of jurors will respond "the law" while one third will respond "personal ethics." When we asked that question of arbitrators in 2007, just 17 percent selected ethics, and when we asked it of federal judges in 2008, just 11 percent preferred ethics. 

So there is a greater tendency for juries to arrive at a case with a fairness orientation, and that can be magnified by the fact that nearly all jurors are bringing and applying their own experiences as employees and implicitly asking themselves questions like "would my boss have done that?" or "would I have taken the same actions as this employee?" It is a mistake, however, to see juries as the only ones focusing on fairness. When, in 2007, we ran a head-to-head comparision looking at arbitrators' and jurors' response to the same case, it was striking that both fact finders mixed fairness in with the law in evaluating the case. 

It is also a mistake to think that an emphasis on fairness only works to the employee's advantage. For example, in a brief focus group that we ran earlier this month, mock jurors responded to an age discrimination scenario by focusing on the company's right to focus on bottom line results. "The probability of there being some kind of discrimination is real," as one mock juror noted, "but if the company can prove his performance was not up to standards, that denies his right and puts me in the position where I support the company. Bottom line, businesses are in the business of making money, they have to be."

Should I Avoid Juries Because They're Out of Control on Damages? 

Another perception, augmented by the data above, is that juries are more attuned to deep pockets and more accepting of extreme damage claims once they reach a conclusion of liability. Certainly, anecdotes do support the conclusion that some juries can be awfully generous. But the claim that juries as a rule are more extreme than the individual legal decision makers (judges and arbitrators) fails to account for the moderating effect of group dynamics.

That is, the perception that juries give high damages is widespread, even among those who serve on juries. When we asked the jury-eligible population in 2007, 36 percent declared jury awards to be "excessively large," and an additional 23 percent felt they were "large." That left only a minority of jurors believing that awards are "about right" or "too small." That distribution nearly guarantees that, even after strikes, there will be some on the panel who are sensitive to exaggerated damages and will act as an anchor to bring damages down. 

For example, in our 2009 survey, we gave respondents a scenario in which we asked them to presume that a company was liable and acted out of greed, and even in that setting, fully a third felt that "high damages" were probably or definitely bad. 

Chart 34

There is also an important difference in what is considered "high." In our survey, we asked participants to describe an award of $10 million in an industrial accident case and 27 percent of juror-eligibles, versus just 5 percent of arbitrators considered that amount to be "excessively large." A majority of arbitrators, 53 percent, instead considered that amount to be "about right." That suggests that those who work in law may simply be desensitized to higher numbers and may be starting out the case with an elevated benchmark. 

And there is research to support that tendency. Looking at comparable automobile collision cases that ended up in either arbitration or jury trial Wittman (2003), found that the arbitrators awarded higher damages after controlling for differences within the cases themselves. Applying similar methods to a comparison of juries and judges, two other studies (Clermont & Eisenberg, 1991; Vidmar & Rice, 1992), found again that the judges awarded the higher damages in comparable cases. It is easier for a single decision maker to go to an extreme. If a juror is very liberal on damages, she will probably be checked by someone else on the jury who isn't. But if a judge or arbitrator is liberal on damages, he will be unchecked. This provides another good reason for providing an alternate anchor by providing your own damages estimate in most cases. 

Should I Avoid Juries Because They Have It in for Corporations? 

We always hear some gasps and nervous chuckles when we play one particular juror deliberation clip for a defense audience. "I hate large companies," the juror opines, "I absolutely despise them. I think they are what’s wrong with this country. But they are a necessary evil. Like, our government is Enron, Walmart, pharmaceutical companies. They've taken the American dream, smooshed it, drawn a picture of another one and they're mass selling it to everyone." That level of anti-corporate attitude is somewhat typical as we've written before

What is generally most surprising to the audiences is that such attitudes aren't unique to just a small segment of the population, like those manning the "occupy" barricades, but are widely shared. Over the last decade, for example, we have tracked agreement or disagreement with the statement, "If a company could benefit financially by lying, it's probable that it would do so," and have consistently found that eight in ten potential jurors will agree with that statement. When we asked that same question of judges, we didn't find eight out of ten…but we find nearly five in ten (45 percent) agreeing that corporations "probably" lie for money.

So, again, the pattern is that there are some important differences with the jury population, but they aren't necessarily as extreme as you might expect. Just as it is wise to address fairness as a dimension of your argument with all audiences, it is prudent to assume that there is a baseline level of anti-corporate bias that you face not just in addressing jurors, but when persuading arbitrators and judges as well. 

One practical implication of these attitudes, that applies in particular to employment cases, involves the burden of proof. During the employment focus group we ran earlier this month, I asked the group, "Who bears the burden of proof — the employee to prove they were discriminated against, or the company to prove they terminated for legitimate business reasons?" Half the panel got the right answer, but the other half responded that it should be the company, because "it was their choice" to terminate and because they can show "their common practices." As one mock juror noted, "I think it's the company's responsibility to show that [discrimination] could not be what happened." In other words, they have to rule it out. That may be legally incorrect, but there is a logic to it since the employee generally has less access to the reasons for the decision and the business is, after all, defending its own decision. In most employment cases, defendants are better off acting as though they have the burden of proof, and that applies even when the fact finder is an arbitrator or a judge. 

My point is not to suggest that one fact finder is necessarily better than another in all contexts. But the current level of migration to mandatory arbitration by employers reflects a belief that arbitrators are always better, and a closer look reveals that it isn't so simple. A focus on fairness and a susceptibility to bias can influence all decision makers, and there is at least some chance that the single decision maker is a greater risk than a jury that has to compromise. What is best is a situational analysis in each individual case rather than a blanket preference. 

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Other Posts on Employment Litigation: 

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U.S. Department of Justice (2002). Civil Trial Cases and Verdicts in Large Counties. 

Clermont, K.M. (1992). Trial by Jury or Judge: Transcending Empiricism. Cornell Law Faculty Pulbications. Paper 246. http://scholarship.law.cornell.edu/facpub/246

Colvin, A. & Pike, K. (2012). The Impact of Case and Arbitrator Characteristics on Employment Arbitration Outcomes. Paper presented at the annual meeting of the National Academy of Arbitrators, Minneapolis, MN. 

Vidmar, N. & Rice, J. (1992). Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals. Iowa Law Review 78. 

Wittman, D. (2003). Lay Juries, Professional Arbitrators, and the Arbitrator Selection Hypothesis. American Law and Economics Review 5. 

Image Credit: Jason Bullinger, Persuasion Strategies

May 28, 2012

Treat Your Terminations as “For Cause” (Even When They’re “At Will”)

By Dr. Ken Broda-Bahm: 

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Here is a piece of advice that works not only as a trial message, but also as a strategy for avoiding trials in the first place: When someone loses their job, make sure it is for reasons that meet the legal tests, even when those tests aren’t legally required. For in-house attorneys or HR personnel, that can mean functionally treating employees as “for cause” even when they might be “at will.”

When an employer faces the need to let an employee go, and the threat of litigation in response is either real or implied, it is only natural for the company to want to wrap itself in cleanest available defense. On that score, it is helpful to the company that the vast majority of American employees are “at will” employees, meaning that the relationship may be ended by either party for any reason, as long as that reason isn’t illegal. That last caveat, however, provides quite a bit of wiggle room for a former employee/plaintiff to argue, for example, that a termination was discriminatory, violated an express or implied contract, or ran afoul of an implied covenant of good faith and fair dealing. That means that in practice, juries, judges, and arbitrators will generally take a close look at the equities of the result. But the role of fairness isn’t always simple. In this post, I take a look at some of the factors that affect that perception of fairness, including the seven tests of just cause.  

Fairness Matters, But Not Always in the Way You Expect

I frequently assist in employment cases when the disputes reach either jury trial or, more often for me, arbitration. For all decision makers, including judges, the decision can come down to the basic equities as well as the law. But fairness having a seat at the table doesn’t always equate to a greater sympathy for the employment plaintiff. The practical effect can be more complicated than that.

One example of this complexity is found in a study I came across focusing on judges in the United Kingdom. Professor Ioana Marinescu of the University of Chicago (Marinescu, 2011) looked at the question of whether the state of the economy – specifically, unemployment and bankruptcy rates – influences judges’ verdicts regarding terminated employees or not. It turns out that it does, but not in the most predictable direction. You might think that in a down economy, judges would factor in the substantially reduced chances of quickly finding another job, treat termination as a bigger deal, and thus require greater justification from the employer. If that were the case, challenging economic conditions would cause judges to find for employment plaintiffs more often. In fact, the role of a bad economy was to make judges less likely to find for the plaintiff, and the article cites research from other countries showing a similar result. 

Why would that be the case? The professor’s explanation is an economist’s: Judges are acting on a rational desire to maximize the joint welfare of the parties involved in the case. But there is also a possible psychological explanation. When unemployment is high, decision makers looking at the recently unemployed can think, “You were lucky to have a job, and should have tried harder to keep it.” When the stakes are greater, one version of fairness is to place proportionately greater responsibility on the party that bears the consequence. In a bad economy, it is easier for the business to find a new employee than it is for the employee to find a new job. The greater weight of the consequence translates into a greater weight of responsibility. 

Just Cause in a Just World

One way of looking at this is through the lens of the cognitive bias called the “Just World Hypothesis” (Lerner & Miller, 1978). The idea is that people want to believe that the world is just, and therefore have a preference for reasoning in a way that makes known outcomes appear more justified. Put more simply, people want to believe that others tend get what is coming to them. When an outcome is bad, that style of reasoning causes responsibility to be placed on the victim as we look for ways they could have avoided the situation. 

In that context, the results of the study of UK judges may be more understandable. The relatively worse outcome of being unemployed in a bad economy motivates greater focus on the actions by the former employee that could have avoided that result. A belief in a just world is often an aid to the employment defendant because it leads to a sense of greater power and responsibility for the employee. After all, in a just world, no one would face that difficult and unexpected job search without having brought it on themselves to at least some extent. The presence of this style of thinking underscores the need to use a just cause lens even when there isn’t a legal need to do so. 

Seven Tests of Just Cause

There is a widely used list of seven questions relating to termination. They’ve been around since 1966, when they were first articulated by an arbitrator, Carroll Daugherty. While each test isn’t legally required in all situations, the tests as a whole provide a rough measure of the perceived and actual fairness of the termination. Used as a checklist, they serve as a useful guide to the in house or HR representative deciding on a termination, or a road map to the litigator who is defending that termination. 

  1. Was the employee forewarned of the consequences of his or her actions?  Knowledge is power, and when the employee knows that specific behavior will lead to termination, then their choice to engage in the behavior anyway justifies the termination. 
  2. Are the employer’s rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee? Rules are rules, but to be fair, those rules need to be necessary and rational. Violating expectations in a way that impedes performance or mission is a fair reason for discharge. 
  3. Was an effort made before discharge to determine whether the employee was guilty as charged? In a way, the termination needs to be treated in practice as a miniature criminal case in the sense that bad behavior can’t be presumed and should instead be investigated. 
  4. Was the investigation conducted fairly and objectively? An inquiry or a management plan cannot simply be a prelude to termination. Instead, it needs to provide an opportunity for the employee to justify or potentially reform their conduct. 
  5. Did the employer obtain substantial evidence of the employee’s guilt? Again, the lens is a quasi-criminal one of “guilt,” but the behavior justifying termination should be proven to the satisfaction of a decision maker with the organization’s best interests in mind. 
  6. Were the rules applied fairly and without discrimination? Are the same standards being applied equally to all? While the employer wants to say, “This is about you, not others” in practice, expectations that are selectively applied will always look arbitrary or discriminatory.
  7. Was the degree of discipline reasonably related to the seriousness of the employee’s offense and the employee’s past record? Does the punishment fit the crime? Proportionality can’t be measured with precision, so the test is whether it would appear fitting and just to a neutral observer. 

Whether you use it to prepare your litigation message, to avoid trial, or both, this list provides a useful and simple reality check. Termination is almost never going to appear subjectively fair to the terminated employee. For that reason, fairness needs to be fit into a broader frame: fairness to other employees, to customers, to the company’s goals and mission. In that circumstance, a clear case combined with affirmative answers to the seven questions provide either good protection or a good message in trial. 

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Other Employment Law Posts: 

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Melvin J. Lerner & Dale T. Miller (1978). Just world research and the attribution process: Looking back and ahead. Psychological Bulletin, Vol 85(5), Sep 1978, 1030-1051. doi: 10.1037/0033-2909.85.5.1030

Ioana Marinescu (2011). Are Judges Sensitive to Economic Conditions? Evidence From UK Employment Tribunals Industrial & Labor Relations Review, 64

Photo Credit: Late for Work LLC (get the shirt here), used by permission. 

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