Wednesday, March 30, 2011

What Do 1.6 Million Women Have in Common?

They all want back pay from Wal-Mart because of gender discrimination.  The big issue for the Justices of the U.S. Supreme Court during this week's oral argument in (Tues. 3/29/11) in the appeal of Wal-Mart v. Dukes was "due process."  Will statistical evidence of pay disparity covering broad swathes of female vs. male workers in thousands of stores permit Wal-Mart the opportunity to defend itself by showing that pay practices were non-discriminatory in individual stores as applied to individual women?  Even the liberal Justices of the Court seemed to struggle with this question.

The weight of expert opinion among those watching the oral argument is that Wal-Mart will prevail on appeal (after losing at the District Court and Ninth Circuit Court of Appeals).  I'm sure the Justices are thinking about the social implications of a  rule of class action law that would open nearly every discrimination case to the prospect of becoming a class action.

What do you think of the social and business implications of allowing classes of people to sue for discrimination based on only generalized data showing disparate pay practices extrapolated from a broad cross section of employees and locations?  What good could come from such a decision?  What "bad" could come from such a decision?

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

Monday, March 21, 2011

Colleagues: Karma and Lawyer Jokes

It seems my karma of the last 30 years is to be tracked by a series of lawyer jokes.  There is a deep cultural angst about lawyers:  we love them, hate them, hold them in high regard, and villify them.  We don't seem neutral about them. 

I confess, I am not neutral about them either.  The fact is that they are part of my professional family.  I should not be neutral.  Like any family, we are a mix of the healthy and the dysfunctional.  Becauses much of what we do is in the public eye, our flaws are all the more visible, as might be our occasional virtues.

I find reassuring that our great men, e.g., Lincoln or Adams, and our first African-American president, were first lawyers.  There is after all something good in the law, and good men seem to gravitate to it.  It is true too that scoundrels may seek to use the law for their purposes as well, but overall, it is our respect for the law, if not the the lawyers who apply it, that distinguishes us as a free people. 

On a more mundane and personal level, I like the lawyers I work with generally.  They are far and away more intelligent, more articulate, and more disciplined than many of the other people I know.  They are steadfast in their work, and dependable generally.  They are able to deal with stressful and complex situations, and reach conclusions.  The best of them are people of both heart and brain, caring deeply.  Today, for example, I worked with a lawyer on a volunteer basis who is on a committee to select speakers for our professional organization.  He took inititative, he needed little monitoring or reminding, he located and selected outstanding speakers, and he was pleasant and responsive through it all.  And, he was not unusual--this attitude and diligence is typical of the twelve members on the committee. 

If we as lawyers have a "PR problem" with the public, we probably deserve it, but not because of the failings of the majority, but the because the majority are not as visible in their virtues as the minority in their vices.  The fault is with us, as lawyers.  As a profession, we need a compelling vision of our elevated ethical and moral role in society.  We need to articulate and follow a vision of a high social calling of service, humanity, warmth, and compassion for fellow citizens.  Our essential flaw is our selfish pursuit of our own interests.  The public justly has come to distrust us if it thinks we are exploitive and abusive. 

My professional organization, the Labor and Employment Law Section of the Orange County Bar Asssociation collects and delivers food each month to a county wide food bank.  Last month we collected toys and pledges for Children's Hospital of Orange County.  As I get to know the members of the Section personally, I am discovering the goodness each of them brings to the network.  These persons are people of good character, and concern for others.  They are first persons with struggles and dreams, like us all, and then lawyers.

I think the public responds with strong negativity to lawyers at times because they want so to believe in us as "priests of the law."  We lawyers are given monopolies, with special status and opportunity.  The public justly expects us to honor our position by "good work" and "noble actions."  I can live up to that expectation.  So can my colleagues.  In fact, many of them do.  

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

Saturday, March 19, 2011

Lingual Influenza

Paper, boxes of it, volumes of words strung with alleged significance, page after page--this is the "fat" of litigation.  I believe that in the legal world, brevity is like gold, valuable, and seldom seen.  

I frankly (since I am always "Frank") do not know if the advent of electronic filing and transmission will help or hinder in the big picture.  When manual typewriters were in use, people produced fewer pages, I think, just because the process of creating them was slower and more difficult.  Likewise, loading and carrying paper around, or having to store it, [if you are a court house administrator], has a way of imposing page limitations.

But now, the storage and volume is practically unlimited.  I have a cynical feeling that the volume will expand to fill our nearly unlimited capacity.  We are wordsmiths with lingual influenza, drowning in our own words.

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link

Friday, March 18, 2011

Sherlock Holmes Would Be Appalled: Workplace Investigations?

Federal and state statutes and case law generally anticipate that a workplace investigation is an important employer tool that will prevent discrimination and harassment, and even result in some discipline of offenders.  I'm sorry to say I have a different impression of just how these investigations actually work.  They are more often used by employers as "weapons of defense" rather than as "tools of prevention."

Federal law has long given an employer an affirmative defense that an employer is not liable for harassment which is not reported by the alleged victim [at least in cases where there has been "no tangible economic harm."].  California follows an affirmative defense of "Avoidable Consequences."  To the extent the harassment victim could have herself or himself prevented the harassment by reporting it to the employer, the employee is barred from recovery of damages for the period of non-reporting.  Bottom line:  the courts want employers to police themselves.

Instead, many Human Resource departments place their priority on creating legal documents under the direction of legal counsel. The result is an nearly inevitable conclusion of "no evidence" to support the allegations or at best, that there is "some information" of inappropriate conduct but not sufficient to find discrimination or harassment.  These findings, unsurprisingly, seem more likely to be made when the accused is high in the management hierarchy.   In my 17 years of employment law practice, I have not seen one investigation conclude that sexual harassment or other discrimination have occurred.

I really wonder what standard many so called "investigators" actually use in reaching conclusions of "no harassment.".  While proof by admissible evidence in court is not required (or desirable), it seems to me that the standard, at least in California, is whether the employer "acted reasonably" in making a decision to discipline (or forego discipline) of an accused.  That "reasonableness" standard has to be examined in the context of the legal definitions of harassment.  An investigator who does not at least know what "harassment" and "discrimination" are under the law is in a very poor position to reach conclusions.

I have had situations where my clients explain to me that they felt they were under cross-examination by the "investigator" who seemed to challenge their accusation by demanding that my client must have a direct statement by the discriminator of dislike of persons of my client's age, race, or gender.  That is not the law itself, which allows for indirect and circumstantial evidence, such as different treatment, and lack of evidence to support disciplinary action against the protected employee.

Also, many investigators seem to think that by surprising the employee with the investigation, they somehow get better, more reliable information.  Surprising an employee simply serves to get unreliable and incomplete information because the employee has not had time to recollect and organize the information.  The situation is even worse then an attorney is selected to conduct the investigation.  Then the questions seem even more adversarial.

For example, one client shared with me that the interrogator asked repeatedly:  "Is that all the information you have to support your charge of harassment?"  or  "Is there anything else you can think of that would support your charge?" or even:  "What evidence do you have that discrimination occurred?"  These are "deposition style" questions used to "lock in" a witness early to a position to prevent more information coming to light later as the employee remembers other matters.  The questions are not intended or designed to elicit all the facts impartially.   The reason the questions are unfair is that most employees do not know the legal definitions of discrimination and harassment, and think they must have direct evidence, and so will answer:  "Well, I guess that's all.  I don't know of anything else."  If you are an employee in such an "investigation" be sure to say "I may think of more later, and I will let you know," or "I felt these actions were discriminatory, and so I'm listing them all, even if you don't agree."

Another gripe of mine is that an investigation delayed is no investigation at all.  The investigation is part of a general duty to prevent discrimination and harassment, and to take prompt corrective action.  There are two goals:  protect employees from discrimination, and yes, let the harasser and others like him or her know that such conduct is punished.  I have seen many H.R. departments simply ignore or casually respond to complaints that the law requires to be promptly investigated.  The result is liability upon the employer for failure to prevent harassment or retaliation that may thereafter occur.

In conclusion, if Sherlock Holmes were asked why many workplace investigations fail to meet the requirements of the law, I suspect he would answer:  "Elementary my dear Watson."  

The Exciting Part of Practicing Law

I communicate weekly with an "accountability partner."  We use a written and mental checklist just to account for how we're reaching goals or dealing with "issues;"  Last week, out of one of these conversations concerning my practice, I connected two dots:  I love to write, and I love to write creatively.  I love looking for the unusual angle, the interesting story line, the unexpected event that results in a breakthrough.

I am learning to create that "feeling" in my writing, but am I creating that spirit of adventure in the practice of law?  You may of course ask that question in your own line of work.  What is the unique contribution I make to the "cookie cutter" work that I must do each day?

If it were easy, it wouldn't be as satisfying to succeed in the challenge.  Of course it is not easy to bring a spirit of creativity and possibility to the many mundane and often repetitious tasks of the day.  Those "basic" tasks never go away.  We all have unpleasant parts of our daily work.

But we can add "flavor" to those days of routine work by applying some aspect of our unique talents to the day. We can build a block of time to cultivate a spirit of "unique contribution."  It might be our ability to strategize a new marketing campaign, or it might be the way we communicate to our customers as we serve them at the counter.  Maybe it is our sense of humor, or ability to build a "team" or just the way we use our tone of voice and facial expressions to make a different impact during a group discussion.  Whatever it might be, we leave an "imprint" of ourselves for good or ill.

I look at the world in all its complexity and constant change as an unfolding "story."  I love to tell stories:  to bring out the emotions of people as they respond to the story.  The practice of employment law is a wonderful opportunity to build the "story of the case."  There are many mundane aspects of litigation, such as answering tedious, endless, and often useless discovery questions, but there is also the opportunity to place those mundane activities within the large context of an exciting, unfolding story that I get to "write" as I present it to various persons:  mediator, judge, arbitrator, jury, and even opposing counsel.

The exciting part of practicing law, or serving coffee, or cutting hair, or deciding a vision for the corporation, or offering ski lessons, or selling medical equipment, or just living, is YOU.

"If the pink slip doesn't fit, get redressed!"
Click to see my wardrobe of remedies. Link