Monday, June 09, 2014

When to Sue Your Employer

Why would you file a suit for discrimination or harassment at work? You're a peace loving person who just wants to do his or her job, and go home to enjoy the family. Besides, you ask yourself, how can I prove it?

There are three reasons to file a case for discrimination:

1) Your efforts to enter an early dialogue and resolution of your employment grievances have reached an impasse despite your best efforts to be transparent and reasonable;

2) You know the company treated you unfairly in deciding to let you go, and you strongly suspect, even if you cannot put your finger on it, that it was because you were an older worker, or that you took some time off for a serious health condition, or because you weren't a member of the "old boys" club.

3) You have obtained expert legal counsel who informed you of the strengths and weaknesses of your case, giving it to you straight. Your questions about financial costs, and risks of losing were answered forthrightly, and you're ready to make the investment.

This third reason includes an assessment of just what you have to prove in a discrimination case. The fine point here is this: indirect and circumstantial proof is sufficient. In other words, extracting an admission, or obtaining a private email or memo stating a discriminatory motive in firing someone is not a requirement of the case.

The reason is practical: discrimination is seldom a moment of pride for an employer. The manager who makes the discriminatory decision is likely unaware of his or her own bias, or is very hesitant to admit it to himself or anyone else. The sparsity of direct evidence means that many real cases of discrimination would never be presented or proven, and therefore discrimination at work would go unchecked.

As a result, the courts have designed the following basic elements of a discrimination case: a) that you are in a "protected" category; b) that you were performing your work satisfactorily; c) that there was remaining work for you to perform; d) that someone outside your "protected category" assumed your job responsibilities, and d) that you have suffered financial and/or emotional injury as a result.

It's that simple, and that incomplete. The burden of proof has been met, but the employer may overcome that proof with evidence of its own that the reason for termination was business necessity. That burden is fairly easy to meet.

The game-changer in the trial of a discrimination case is to prove that the reason is not only a lie, but likely a lie intended to cover-up a discriminatory motive. Are we back where we started with a requirement of direct proof? No. Only some additional corroborative evidence of discrimination is needed. For example, a manager may have made an off-handed comment that "Bob, you seem to be slowing down. When will you be retiring?" or maybe there is an email that refers to the need to recruit new youthful energy into the organization. These are not "direct" statements, but they are relevant to the question of discrimination, and courts have so held.

To conclude, you would file a lawsuit if your employer is stubborn in refusing to settle despite the uncertainty of "circumstantial proof" you or your attorney presents informally in an effort to reach an early settlement. As the case progresses, witnesses are interrogated, and documents collected, the employer may awaken to the risk of a significant verdict it could have avoided early in the process by listening to reason.

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Questions to Ask Your Employment Lawyer and Yourself About Your Case.

Question One: How many employment law cases have to your tried to completion?
Question Two: What systems do you have in place to manage my case?
Question Three: How active are you in professional organizations?

These are difficult questions perhaps, but with a little preface to the questions, they will seem perfectly reasonable: "I am a lay person. I am trying to select the most qualified and trustworthy advocate. May I ask a several questions about your background?"

Good lawyers will graciously and generously answer your questions. If you do not get that reception, it's best to look for another employment law practitioner. But there are also three questions you may find useful to ask yourself after your meeting with your lawyer candidate:

Question 1: Did I feel a positive, confidence inspiring connection with this person?
Question 2: Did I feel I was heard, and that he or she got the essential points?
Question 3: Did I leave feeling I understood the big picture of what this attorney would do for me, how, and when?

You don't have to like your lawyer to obtain good results, but it will make the process easier because you'll be working as a team. This "team" approach to the case is especially true in contingency cases where you and the lawyer each have a percentage stake in the outcome. A good lawyer will want that team spirit and connection as much as you. Here are three questions that your should ask both you and your lawyer before you go forward:

Question 1: Do we communicate clearly and efficiently with one another?
Question 2: Can we laugh and relax even as we discuss difficult legal issues?
Question 3: Do we exchange ideas and insights about the case freely?

These "team" based answers will give you a preview of how you and your lawyer will respond when there is an unexpected negative turn in the case (and there always is.) For example, what if the other attorney uses intimidation tactics, or a particular piece of evidence is excluded, or a critical motion is denied, or perhaps a cooperative witness disappears or changes his anticipated testimony? You need to work together at those times to develop new approaches in the heat of the situation.

Here are 3 final questions, perhaps questions at the highest level of evaluation:

Question 1: Is my lawyer able to tell the emotional story of my case?
Question 2: Is my lawyer able to connect well with other people, especially people likely to be on a jury, or sitting as judge of my case?
Question 3: Is my lawyer creative, looking for tactics and approaches that may seem unusual, but that give us an edge against the opposition?

There are no perfect lawyers, just as you will not be the perfect client with the perfect case. Your goal is to find the best imperfect lawyer you can, and to be able to work with both the strengths and weaknesses of both him or her, and your particular case.

Frank Pray has devoted the last 18 years of his nearly 40 years of practice to litigating cases exclusively for employees in wrongful termination, discrimination, whistle-blower, harassment, and wage/hour cases.  As a sole practitioner, he gives his personal attention to each client, from the first meeting to the settlement or verdict.  He is an experienced trial and arbitration lawyer, and active member of the Orange County Bar Association Labor and Employment Section [2011 Section Chair].  He is also a member of the William P. Gray Inn of Court, dedicated to excellence and ethics in the practice of law, and a member of the Orange County Bar Association "Masters Division" and Solo Practitioners Section. 

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.