|Jottings By An Employer's Lawyer|
Monday, October 18, 2004
Why The World Looks Different After A Jury Finding of Discrimination
Why Juries Assess Big Verdicts - And How You Can Avoid Them. The average verdict in employment cases continues to rise, often due to greater punitive damages awards (which are designed to punish the defendant and deter wrongdoing by others). This special presentation will analyze employer conduct that makes juries mad, including harsh terminations, lying, arrogant behavior, and misconduct at trial. Also addressed will be practical tips for minimizing exposure and the role of HR in controlling verdicts.So I thought I might pick up a useful anecdote for the presentation. Instead what I found was the story of a workplace incident between a supervisor and some of his workers which based solely on the facts relayed in the opinion could easily be argued was mishandled by a supervisor. The result was 5 employees walking off the job, which after further upstairs review led to their termination and a written warning to the supervisor's file which the court concluded was not a form of disciplinary action. What struck me is that the evidence used to uphold the verdict of intentional national origin discrimination was of the type that almost any employer, perhaps particularly an employer mindful of their need to be a non-discriminatory employer might say and do.
First, the comments of some of their HR employees:
Wendy Roe was the [plant]human resources manager at the Newark facility until her employment was terminated in February 2000. Roe had remarked to Williams [regional human resources manager] that some of the temporary employees at the Newark facility who were not from East India were feeling excluded by the East Indian employees.The court's view of the (non)-disciplinary memo to the supervisor involved:
Neither Williams nor Perry recommended any discipline for Wright [the supervisor] regarding the incident and he was not disciplined. Perry did, however, write a memorandum dated July 19, 2000, and placed it in Wright’s file. The memorandum stated in relevant part:Another fact relied on by the court to uphold the finding of intentional discrimination, shortly after the incident the company changed staffing companies which hired temporary workers, like the one involved in this incident. Unlike the prior company it was not East Indian owned. The result, "about 40 percent of the new hires from this agency were East Indians while previously 80 percent of the new hires had been East Indians. From December 1999 through and until December 2000, the percentage of East Indian workers making up the regular workforce at the Newark facility decreased from 85 percent to approximately 66 percent."“Although you deny the negative statements that your crew stated you said and also deny that you spoke to them with [anger] and used ‘curse words’, I am concerned that five employees were upset enough to walk off their jobs. Because of this I feel I need to emphasize our Harassment Policy to you so that we may avoid any situations, real or perceived, of this nature. [¶] Although our policy specifically addresses sexual and racial harassment, it also states that our workplace must be free of ‘undesirable, unprofessional behavior’ and that no associate should feel that their [sic] work environment is ‘intimidating or offensive’.”
Although it is very hard to get what really happened from a cold trial record, especially as filtered through an adverse appellate opinion, still I am hard pressed to find many cautionary tales from this case, short of abdication to challenges by workers, which I know is ultimately both unworkable and unsound HR policy. Come hear us in San Diego, maybe some of my fellow panelists Corbett Gordon of Fisher & Phillips (Portland), Jeff Portnoy of Cades Schutte (Honolulu, assuming he is not in trial) and Paul Prather of Kiesewetter Wise (Memphis) can do better with it than I can.