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Why Jurors Fire Back During Wrongful Termination Lawsuits
A recent experiment by the American Bar
Association staged a mock handicap discrimination trial,
in which the evidence was stacked heavily in the employer’s
favor. After the jury retired, the judge announced that,
were this a real trial, he would have thrown out the case
because no reasonable jury could find for the plaintiff.
But since it was an experiment, he let the jury deliberate.
The jury concluded that the employer did not treat the
plaintiff ‘fairly” – a consideration
that was legally irrelevant – and recommended a multimillion
dollar damage award.
Jurors can and do believe that some employees deserve to be fired. They’ve
worked with the insubordinate jerk or the marginal employee whose poor performance
brings the rest of the department down. What they don’t believe, however,
no matter how well deserved the termination or how flawlessly documented the
poor performance, is that an employee deserves to be humiliated or embarrassed
in the process. They won’t forgive the manager who fires his employee
while his 8-year old “Take Your Daughter to Work Day” darling stands
by watching. Neither will they buy a “the bottom line is the employee
deserve to be fired” defense.
I’ve seen many a corporate defendant lose a case by focusing on the technicalities
of at-will employment while the jury obsessed about how the employee was treatedin
the termination meeting. Not surprisingly, the reasons why an employee files
a wrongful termination lawsuit are often the same issues jurors won’t
forgive. In this article, we’ll take at how jurors view wrongful termination
claims and what this means in terms of prevention and defense.
Juror message #1: The playing field ain’t
level.
Corporate
defendants start out behind the proverbial 8 ball. Juror
suspicions are high, corporate trust is low, and these
attitudes are held by a majority of eligible jurors across
the nation. In a study conducted by DecisionQuest in 2002
of over 1000 respondents nationwide, 86% agree or strongly
agree disclosures concerning Enron and Worldcom have made
them much more suspicious regarding corporate conduct and
corporate motivations. Of this 86%, over half (58%) strongly
agree. The events of Enron/Worldcom are not viewed in isolation
but rather symptomatic of an “epidemic” of
corporate fraud and misconduct. In the eyes of jurors,
corporations beyond the purview of these events also are
tainted.
Add
this to the fact that jurors start out sympathizing with
the plaintiff. Despite the fact that jurors often believe
that "there are too many lawsuits" these days,
they also assume that the company has done something wrong.
Since it takes so long a time to pursue a civil case, they
believe the plaintiff must believe in the righteousness
of his or her case in order to have pursued it. Jurors
also don’t understand the way that legal fees are
structured. In addition, jurors tend to scrutinize the
plaintiff's behavior less rigorously than they scrutinize
the defendant's behavior. Thus, the defendant faces a difficult
task if it is to convince jurors that it has been fair
and has done nothing wrong.
Effective
strategy: Go beyond the call of duty.
Many
effective plaintiffs’ attorneys gleefully compare
phrases in a corporate mission statement such as "respect
for human dignity" with the facts of an ugly firing.
Senior executives must understand that jurors judge the
defendant's actions not only from a legal perspective,
but also from the perspective of fairness and even "courtesy." They
also need to realize that that empathy toward employees
and reasonable treatment is crucial at all times to prevent
the possibility of lawsuits (and to minimize the damage
if filed).
This
means that corporate executives are well advised to practice
the spirit of employment laws as opposed to resting on
the laurels of their cleverly worded policies and procedures.
For example, the spirit behind harassment laws is that
employees have the right to work in a safe and inoffensive
work environment. Corporate officials who tolerate bullying
managers, who excuse boorish behavior in top performers,
and who consistently promote profits over people may not
be engaging in unlawful behavior. That doesn’t mean
that a jury won’t hand out a large punitive damage
award.
Jury
Message #2: Don’t leave terminated employees in
the dark.
Too
many employees are told, "You’re not a fit with
this firm," or "This is an ‘employment
at will’ company," or "We don’t have
to give you a reason." In an effort to obtain an explanation,
those employees generally go to a phone book, thumb through
the yellow pages and find an attorney eager to sue an employer.
A person's race or sexuality has nothing to do with why
you're firing him or her, but these are sensitive issues,
and if employees feel they haven't been given an appropriate
reason, they will fill in the gaps. So will the jury, and,
no matter what the facts may be, juries tend to be sympathetic
to employee
Effective
Strategy: Tell an employee why they are being terminated.
I
recommend that employees be told the reason for their termination.
There is nothing wrong with responding, "Because of
your continued poor performance." Although employers
are not legally bound to provide a reason for termination
in most states, employees who have been fired tend to press
charges if they feel they were embarrassed, persecuted
or otherwise treated unfairly during the termination process.
Jury Message #3: Forget at-will employment.
In recent research, a majority of the jurors disagreed that employers have
the right to terminate an employee without cause. A smaller, though still considerable
proportion of the jurors said it is wrong for an employer to terminate employees
in order to reduce operating costs. his attitude is even more widespread if
the company laying off workers is profitable, and it is certainly stronger
concerning termination of a long-term employee.
While at-will employment is legally sound in many states, the majority of jurors
still tend to hold a somewhat old-fashioned idea about companies; that is,
that the company owes the employee work (despite any laws to the contrary).
Jurors believe that is not enough to allow an employee simply to exist at a
company. According to jurors, the company has to have helped the employee to
succeed. Again, in most jury trials, the juror's initial predisposition is
to err in the direction of the employee/plaintiff's welfare, and even expect
the defendant to act as a supportive "parent" as the employer
Effective strategy: Teach your managers how to
manage.
Jurors want to see companies who are responsible for their actions, loyal to
their workers, and fair in their adiministration of benefits and rewards. The
reasons 45% of managers fail during their first 18 months, and the reasons
jurors give for awarding punitive damages, are often the same; poor judgment,
absent interpersonal skills, limited emotional intelligence, etc. In other
words, it’s not the technical expertise of the manager, or the legal
facts of the case, that carry the most weight with the employee/juror; it’s
the interpersonal skills.
In
particular, teach your managers the principles of progressive
discipline, i.e., how to identify and communicate with
problem employees about their failure to perform, how to
monitor the performance improvement period, and how to
put the employee in charge of his or her performance improvement.
Employees who have regular meetings with clearly mapped
out goals and objectives can see a well-delineated road
to return to good standing. And, if they fail to pick up
performance by the deadline, the documentation built a
case for firing and the facts you’ve gathered make
a termination conversation easier.
Juror message #4: You’re responsible for
everyone who works for you.
In 2002, eighty-six percent (86%) of 44 jurors surveyed in Atlanta believed
a company should take responsibility for the conduct of their employees and
managers even if they are not aware of it. Furthermore, almost one-third of
this same sample indicated a large company can be expected to control the conduct
of every individual employed at the company.
Jurors believe senior management knows everything that happens in every plant,
dock and shipping station. As one juror recently said during a post-verdict
interview, "That is why they have weekly meetings." Jurors believe
managers know about discriminatory practices by even low-level bosses and they
will hold the company accountable for them.
Effective
Strategy: Expand the scope of your harassment/discrimination
prevention efforts.
If you aren’t providing all of your employees with harassment/discrimination
prevention training, you are doing yourself a disservice. Don’t rely
on your managers to be the “gatekeepers” of appropriate workplace
behavior; they will resent it and the odds are, they can’t do it.
In addition, don’t limit your compliance training efforts to an overview
of relevant employment laws. Frontline personnel, for example, need to understand
that jurors take employment cases personally. Jurors also believe that employment
cases, unlike others such as patent and antitrust cases, are about things in
which they consider themselves to have expertise: work, bosses, fairness, and
unfairness. In addition, as in any case, jury service provides an opportunity
for powerless individuals to vicariously (indirectly) experience giving away
money and "making a difference."
More
specific to employment lawsuits, frontline personnel need
to understand that jurors generally hold employers to very
high standards, such as:
•
Systematic, policy-driven, and formally-documented actions;
• Terminations that are always performance- or seniority-based; and
• “All-knowing, all seeing” management decisions
They also need to understand the potential ramifications of poor judgment.
Sometimes lawsuits are damaging because the manager made an error in judgment
that angered the jury. For example, did the company send the termination notice
in a fax that went to a public fax machine, when the employee did not even
know he/she was going to be fired? Sounds unlikely, except that I’ve
heard it more than once. There are many mistakes at this level that cost companies
a great deal when a lawsuit is filed.
Juror Message #5: Don’t make us mad.
Professors E. Allan Lind of Duke University's Fuqua School of Business and
Jerald Greenberg of Ohio State University's Fisher College of Business canvassed
996 people at Ohio unemployment offices about how they were treated when they
lost their jobs. The goal: to see what inclined them to sue.
Lind and Greenberg's findings: Dismiss someone brusquely or humiliate them
publicly, and you stand a greater shot of being slapped with a suit. Ex-employees
filed actions 19% of the time against companies they felt had lied to them
or dismissed them in an undignified way -- and 71% considered filing a claim.
In contrast, less than 1% filed suits against companies that they felt were
honest and decent about the process, and less than 3% considered legal action
against such companies, even if they were upset about the dismissal. In fact,
treatment at termination was a bigger motivator of legal action than any other
factor, including expectation of a big payoff.
Effective Strategy: Teach Your Managers How to Fire.
A common perception seems to be that firing indicates organizational and managerial
failure and is therefore too sensitive to discuss. But termination is as much
a part of management as recruiting, hiring and retention, and executives need
to learn the dos and don'ts.
All managers need training in how to carry out terminations in a discreet,
consistent, and mature fashion to avoid charges of defamation and/or discrimination.
This means, for example, taking all precautions not to embarrass terminated
workers in front of coworkers. It also means being sensitive to timing, i.e.,
avoiding terminations before vacations, during company Christmas parties, or
in the presence of a large group of colleagues. It also involves practicing
and rehearsing termination meetings in advance so the conversation can be kept
on track.
The Bottom Line
One of the most valuable (and, alas, unappreciated)
aspects of HR’s job is to help senior management
understand the values of the American workforce. More often
than not, an employer’s conduct will be judged by
a group of employees who sit on the jury. Unless management
remembers how employees look at issues and feel about things,
they’ll lose touch with the decision-makers, the
very people who will decide whether management made the
right decision
This is particularly true in wrongful termination claims. Messy, public and
humiliating firings are fodder for hungry plaintiffs’ attorneys. Being
fired under humiliating or unfair circumstances is generally devastating to
an individual and often brings out vindictive tendencies, which increase the
chances that he or she will file a lawsuit to regain a sense of self-respect
Training to create understanding about the standards by which the company's
behavior will be judged by potential jurors can help managers and human resource
personnel to make appropriate decisions that won't anger jurors. Training about
legal issues and procedures is a natural adjunct to these types of training.
Interpersonal skills training for frontline personnel is also necessary to
ensure that frontline personnel make effective decisions about how to handle
tough situations. In defending his tactful letter declaring war on the Japan,
Winston Churchill said, “If you have to kill a man, it cost nothing to
be polite.” It today’s litigious prone environment, it can even
save you money.
NEED A SPEAKER FOR YOUR HR AUDIENCE? CONTACT DR.
JOHNSTON
TO SPEAK TO YOUR GROUP!
Dr. Joni Johnston, author of The Complete
Idiot's Guide to
Psychology, is a popular speaker who speaks to national human
resource audiences on such timely topics as "How to Turn
Employment
Liability into Employee Retention," "The Psychological Road
From
Employee to Plaintiff: How to Avoid Wrongful Termination
Lawsuits,"
and "Dealing With Psychiatric Disabilities at Work."
To contact her to speak to your group,
e-mail
jonij@workrelationships.com.
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