Thursday, September 15, 2011

Creative Issue Spotting: The Birth of An Employment Law Case.

Another attorney called me today to ask if I might be interested in a couple of referrals.  We reviewed the matters.  As if often the case, I separated the "wheat from the chaff" by applying a few heuristics of case selection:  a compelling and simple story that makes sense to non-lawyers.  

In this instance, I knew of a local published decision as well as a U.S. Supreme Court decision that hold a person who is fired because associated with another employee who has filed a discrimination case may have an independent case for retaliation.  The person fired is fired because doing so will in some way hurt the real target, the employee complaining of discrimination.  In this case, the relationship was husband and wife, and the employer, I believe, fired the husband in order to retaliate against the wife for filing two discrimination complaints.  The financial and emotional hurt to both the wife and the husband are obvious.

The caller did not see this issue, but together we applied the theory to analyze the facts, and we identified the "simple compelling story."  This process is part analysis and part creativity.  In one sense, a "case is born" from this imaginative exploration of possibilities.  Often a "case" is at first appearance just a strong feeling of grave injustice done.  That conclusion however is just a beginning. "Unfairness" is often legally tolerated in employment cases.  We employee attorneys are looking for "illegality" as well as unfairness.  In this case, freedom of association is protected as a public policy by the U.S. and State constitutions.  Likewise, the anti-discrimination statutes in California include a little known and infrequently used protection against retaliation or discrimination because an employee is thought to be associated or aligned with a "protected group."

So, today the "smell test" was passed by at least one of the referrals, and the next stage of evaluation will begin with a face-to-face interview with the prospective client.   

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