President's Column
March-April 2010

Five pointers for prosecutors in the foreboding world of the employment lawyer

C. Scott Brumley

County Attorney in Potter County

Employment law is fun. Not fun like going to the park or the lake or the golf course, but fun like an Ingmar Bergman film festival. Sure, it’s dark and moody and you may walk away despondent, but someone’s bound to be impressed that you’ve endured it and can talk about it with words like “nihilistic” and “existential.”

In that spirit, I offer a few indicators of what happens when employment situations deteriorate. A recent study found that the median amount of jury awards in employment cases increased by about 60 percent within the last decade. Of more concern to us, the defendants most often hit with adverse verdicts in employment cases during that time were governmental entities. To drive the point home to those of us who might be inclined to roll the dice at trial, employers won fewer than 40 percent of the cases that went to verdict. That figure tends to support the conventional wisdom of employment lawyers that juries are comprised of employees, not employers.

Confronting those realities is hard for us in the prosecution world. Most of us don’t have much formal training in management, and employment law is the domain of outside counsel in most offices that don’t have a major sports franchise or amusement park within their jurisdictions. In hopes of minimizing the need for large brass nameplate firms (but with no intended ill will toward their rainmaking efforts), I offer five general rules for dealing with employment issues within your office. These lessons have been learned, often the hard way, through more years than I care to remember of dealing with civil rights and employment law and should be considered in the context of the shopworn “this is not intended to be understood or relied upon as legal advice; talk to your own impeccably dressed employment lawyer about specific problems you may encounter” disclaimer. They are not intended to be considered in any particular order of importance, even though they appear that way.


Make some rules. Maybe “no rules” works with cage fighting but not in an office. (Cage fighting isn’t a good idea there, either.) In 1998, the U.S. Supreme Court gave a strong hint to employers that if they didn’t have a clear, consistently enforced sexual harassment policy, they had better get one. As employment law has evolved, it has become clear that this directive is true for all trouble spots in employment, including race, sex, national origin, religion, age, disability, and family medical leave.

Of course, having clear policies defining and prohibiting unacceptable workplace conduct is only part of the equation. Another part is finding enough paper to print them or computer memory to store them. But the more important factors are making them known and consistently enforcing them. We all know the Tax Code exists, but how useful is it in helping us stay on the straight and narrow? The answer for most of us, with the possible exception of CPAs and tax lawyers, would be “not very.” By contrast, effective employment policies are easy to understand and, in fact, must be understood by the workforce, so your office’s employment policies should be written in language that the average eighth-grader can understand. And, then, the staff needs to be made aware of them. A signed acknowledgement that the employee has received and will read the policies is a stalwart of traditional employment thinking. (Didn’t that sound lawyerly?) An effective program, however, needs to go beyond this tradition. The policies need to be discussed with employees. As big a hassle as this brand of training may be, it’s better than the freight train that looms as the alternative.

Then there’s enforcement. Enforcement of employment policies has to be consistent. That sounds easy enough, right? It’s not. We are wired to be kinder to those we like than to those who give us indigestion … or fruitcake during the holidays. Letting that be the order of the day in management is called many different things by plaintiff’s lawyers, with the most polite being “favoritism.” Juries dislike that. Giving a pass to the office’s good guy for being consistently late, making au gratis personal copies, telling the kind of jokes that make even boors like me raise their eyebrows while lowering the boom on the office “whiner” or other persona non grata for similar conduct, may feel right in the short term. In the long term, though, it ferments a foul brew of hard feelings. That usually leads, in turn, to a new sense of diligence in the offended employee. Unfortunately, that diligence generally is focused on finding ways to become bulletproof (say, by making a Whistleblower Act- or Title VII-protected report) while throwing you under the bus. If you don’t want to be roadkill, you’d better be sure you have a clear, objectively documented reason for being more lenient with one employee than another in the face of similar misdeeds, past or present.


Employment issues are not like fine wine; they don’t get better when left to quietly age in a dark cellar. Let’s face facts. Sometimes we would rather give ourselves an appendectomy with a pocket knife and a bottle of scotch than confront certain problems. Workplace disputes usually fall within that category. As intractable as he-said, she-said office vendettas seem, though, playing ostrich with them can bear bitter fruit. Perhaps a different inane analogy would be helpful. If you bury a ladybug next to your house, what happens? Nothing. Much the same holds true for ignoring me. On the other hand, if you bury a termite next to your house, what happens? It burrows into the ground, reproduces, eats the wood in your house, and puts pornography on your computer. Well, maybe not the last part, but you get the point. Much the same holds true with employment issues.

When a complaint about a potential employment law violation arises, prompt action is required. In these circumstances, that action can be thought of as the “-ates.” Management needs to promptly separate (the accuser from the accused), investigate, assimilate (the results of the investigation), evaluate (those results carefully), effectuate (action intended to stop discriminatory or retaliatory conduct), and not berate (either the accuser or accused). Likewise, the involved parties must cooperate. Your employment policies should make clear that cooperation in any employment-related investigation is required, even if that may implicate Garrity concerns.1 It may also be useful to explain that cooperation is in everyone’s interest. From a practical standpoint, the accuser’s reticence or mendacity will obviously hinder the ability to uncover the truth. Perhaps more importantly to the accuser, though, it may provide the employer with a defense based on the accuser’s failure to reasonably take advantage of the employer’s remedial procedures. If the accused chooses to clam up, it may be seen as a tacit confession and prevent a later full testimonial from being seen by the employer or a court as anything but a bit too convenient and contrived.

Another issue to keep in mind in this context is timing. Courts will consistently express their expectation of a “reasonably prompt” investigation and action, but, as is so often the case, there’s no official stopwatch to gauge what that timeframe really means. The time required to complete a thorough investigation will necessarily be a function of the nature and extent of the alleged violation, as well as the number of people involved as participants or witnesses. An allegation that someone made a photocopy of his derriere doesn’t take as long to analyze as a report of a widespread hostile work environment or a sexual assault. Either way, however, the process should be underway within a day.

While the investigation is underway, the accuser and accused need to be separated. The adequacy of separation is better measured in work hours and supervisors than yards. Moving the accuser from next door to the accused to two doors down is unlikely to be effective or well received. If different shifts or supervisors aren’t available, some consideration might be given to the use of paid leave while the investigation is pending. But care should be taken here. Harsh words or conditions in imposing the leave may be interpreted as punitive intent. That can be just as bad as ignoring the complaint. Like most other important endeavors, communication is key. At the risk of oversimplification, good communication in this context would be something like, “We have received a report of a violation of workplace conduct rules. We take those very seriously. To ensure a fair and thorough investigation and prevent any retaliation related to the complaint, we are” implementing whatever separation measures the situation dictates. Examples of less-than-effective communication might be: “Shut your pie hole,” or “Yeah, I’ll get to it … when the federal budget is balanced. Meantime, be thankful I’m not firing you right now. Come to think of it, you are fired.”


Remember a Shakespearean maxim: The fool doth think he is wise, but the wise man knows himself to be a fool. Opinions have their place. They’re the building blocks of the editorial page of the local paper and the blogosphere. While I hold my own opinions in notably high esteem, however, neither my wife nor most of the people I know view them in quite the same light. So it is with employment decision-making.

Whether the task at hand is formulating policy or addressing a workplace dispute, the foundation must be built upon objective facts. Getting a handle on those facts is crucial. The process of gathering those facts must proceed from a willingness—indeed, a need—to develop the total picture, warts and all. That means the process can’t succeed if it stops when only positive evidence is in hand. To paraphrase an old political saw, it’s not what we know that hurts us; it’s what we think we know. Another bit of wisdom teaches that there’s no political problem that can’t be solved by a few well-placed photographs. Although that thinking is as cynical as I am, it speaks to the notion that objective evidence is far more useful in making sound, supportable decisions than preconceived notions, generalizations, or naked conclusions.2

With that in mind, a sound investigation or fact-finding effort must dig beyond the fluff or vitriol on the surface. Reporters are taught in journalism school (putting aside the question of retention) to seek the same thing in every story: who, what, when, where, why, and how. Similarly, answers to those inquiries should be the basis of every employment action. If those answers don’t come in written or tangible form, they must be converted to one of those formats immediately. Take statements and get signatures. Take pictures. Then take time to review the evidence and reach a rational conclusion in keeping with the evidence gathered. The need to temporize is especially crucial if you’re angered by what the evidence reveals. Haste and rage tend to generate poor decisions, both in the workplace and in the courtroom.


You know how you feel about those “Snitches Get Stitches” T-shirts? The same should be true in the office. Most of us recognize that firing an employee who complains about discrimination or violations of the law can be problematic, even if the merit of the complaint’s substance is open to debate. At least with respect to Title VII cases, however, the horizon expanded significantly in 2006. While Title VII does not set forth a “general civility code for the American workplace,” the court construed the linchpin concept of harm resulting from retaliation to be “materially adverse,” which means conduct that might “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”3 So, where can the line be drawn between petty slights or insults and actionable retaliation? Perhaps it’s somewhere near the difference between “your momma” and “your office is now in the basement.” In any event, courts and Wonder Lawyers continue to debate and struggle with that distinction. So maybe it’s more useful to focus on a two-pronged approach to avoiding the quandary entirely.

Initially, the office must have some means of hearing what’s actually taking place in the trenches. Having an “open door” policy is one way to do that. The glasnost approach to management, though, has its upside and downside. It promotes free communication about what’s happening in the office, but it’s more likely to thrive in a decentralized authority structure. Decentralized organizations typically are slower to definitively respond to problems, particularly those that are acute in nature. Doing something important takes longer when you have to get out of a beanbag chair to act. A centralized authority structure is usually more efficient in crisis management, but intimidation in such groups may impede the free flow of communication about problems festering among employees. Where the office has more of a centralized power structure, it may be useful to consider providing an outside recipient for workplace misconduct reports, at least as an alternative. In either event, a report must be acted upon promptly, despite any consternation the report may cause. Even the best signage and views don’t change the destination of a dead-end street.

Next, and ultimately, the issue should be viewed more as cultural than procedural. All the written procedures and protocols drafted by the finest employment lawyers pale in comparison to employees’ perception of prompt, fair action on a complaint. If management is seen as open to receipt of legitimate complaints, as well as diligent and fair in investigating and resolving them, employees are far more likely to speak up at the proper time than if the office’s policy manual is as thick as the Houston phone book but rarely consulted.


If you can’t fire ’em, don’t hire ’em. Before anyone twists off, I’m not suggesting avoidance of hiring a member of a protected class. In fact, that’s the opposite of what I’m saying. The point here is that the proper focus is on job-related qualifications. Experience, education, work history, and demonstrated interest in what we do professionally are legitimate considerations. At the same time, anyone who has interviewed employment applicants and participated in hiring employees knows that there is an inescapable crap-shoot element to the process. References can be checked and impressions can be gauged, but it is nigh impossible to truly know the person hired until she actually shows up to work and begins functioning within the office. That’s when the determination of whether the résumé matches the worker can be made. If the paper qualifications don’t pan out in the real workplace, there should be no hesitation in taking the appropriate action to protect the office’s productivity. Occasionally, however, there’s a tightening in the gut beyond the normal and natural anxiety over issuing walking papers. That may be an indicator that this rule has been violated.

Just as certainly as there are clear job-related qualifications to be considered in evaluating an applicant, there are irrelevant factors that absolutely should not find their way into the mix. Most of us are savvy enough to understand that protected characteristics (e.g., race, sex, religion, national origin, age, and disability) should not be considerations, positively or negatively. But there are subtler, though equally thorny, issues that can slither into the process. The difficulty of avoiding evaluation of how people look cannot be denied, and it’s not entirely irrelevant. If an applicant is sloppily dressed, that may be an indicator of a disinterest in formality or a lax approach to work. On the other hand, how a person fills out a suit (whether well-tailored or otherwise) bears little relation to ability. Likewise, a person’s familial relation to another employee of the office or the county will not make him a better lawyer, clerk, or investigator. The payoff comes when the employee hired, at least in part, on the basis of these latter attributes fails to perform up to expectations. At that point, the complications of hiring someone on the basis of something other than job-related criteria bubble up to make for the queasy feeling that precedes bad press and lawsuits.


While much has been written about how to avoid these dilemmas, the best advice may be a simple test that applies to most difficult decisions: Consider whether you would be comfortable with the decision if its details were published on the front page of the local newspaper. If not, you probably have some more thinking to do. Take it from someone who has seen more column inches in the local paper as a government lawyer than he ever saw as a reporter. Now that’s existential. i


1 See Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (coercion of statement under threat of removal from public office precludes use of statement in subsequent criminal proceedings).
2 I’m told that using the word “naked” in a writing makes it instantly more readable and appealing.
3 Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).