The other night, on one of my many social-media groups, I heard a fellow employment litigator talk about an unpopular topic: when management suffers in an employment case. I know you are all thinking: what? Those bad people who are listed by name in a complaint as the individuals who caused the loss of income and mental anguish that started it all, they are victims? Sometimes they are.
When I was in law school, the Price Waterhouse v. Hopkins case is why I wanted to be an employment lawyer. I strongly identified with the plaintiff, Ann Hopkins. I wanted to change the world and make it accept people like me, like Ann. For all the women who don’t take the time to be “ladylike” in every interaction. But I went to a big firm, and I learned how employment cases really work. And for easily half of my cases, the plaintiff wasn’t a victim at all. The company was.
As I said to a younger associate who I worked with, in every employment case, something happened to the plaintiff. The trick is figuring out what it was, what is the amount of liability an employer faces in light of the legal framework, and whether what the plaintiff says happened is actually actionable under the law. Many times, plaintiffs and their lawyers just want money. But occasionally, a plaintiff would have the goal of ruining his or her supervisor’s life.
I saw it with my first “reverse discrimination” case (for the record, there is no such thing as “reverse discrimination” because, as my hero Thurgood Marshall said, everyone is a member of a protected class). The plaintiff was a man who wanted to make his female supervisor pay for firing him. Never mind most of the people at the company were men. Never mind he had a serious attendance problem, was inappropriate with the few female co-workers he had, and was a generally disagreeable fellow. On no, he had to make her pay because she fired him. I liked my client, and I liked the supervisor even more. Furthermore, the plaintiff was so disagreeable that he ended up being pro se, after he and his male attorney parted ways. I then had the misfortune of dealing with him often. He told me more than once that I couldn’t be a lawyer because I was a woman.
Now because she was otherwise a fine employee and supervisor, we did what you do in cases like this: we settled for nuisance value. But sometimes the situation is stickier, as I saw on occasion, when employees would literally befriend the boss and eventually use the personal details they learned against them, or set them up to be witnesses against the company, against their will. So what should a good boss do to avoid being the bad actor in a Price Waterhouse-type lawsuit (or any employment case)?
1. Always be professional. Your subordinates are not your friends. While you should absolutely be friendly, you should remember to keep it professional at all times. You may think that a funny joke about how only black people can dance is “safe” for your white subordinate who you have known for years, but then you may find yourself in a lawsuit. (This really did happen in a case). Some great insight I heard recently is to performance-manage the way that you would want to be performance-managed. Treat your subordinates like respected colleagues, and keep it professional. While you may find a joke funny that is not at your expense, change the race/gender/religion and see if it is still as funny. Then, no matter what you think, don’t tell it.
2. Document, document, document. If you are a green-around-the-gills manager, document. If you are a seasoned manager with years of management experience under your belt, document. If you are anywhere in between, still document. Having a written record of misdeeds can be the difference between an easy summary judgment motion and a disputed factual issue that costs your company a high six-figure settlement because the employee decides to character-assassinate you. And don’t think you can clear everything up. Not if you are besties with your former subordinate. They will suddenly remember every company policy you broke, the time you hit on the person from accounting during the Christmas party, and the time you told them that you were sure that they would be ok before their review. Don’t rely on your memory. Just write it down, now.
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3. Always follow the company policy, as completely as you can. Just because you believe you and someone are friends, and they would never do something to hurt you, doesn’t mean you shouldn’t follow the policy to the letter. Be sure that all of your subordinates, even Greg, the fellow Cowboys fan in Minneapolis, properly complete their expense reports. Even if you think fellow Dak Prescott fans have great character. Be sure everyone accurately records their attendance, even if you know it may impact them negatively. If you are worried about how something will look, take the initiative and talk to the employee about their habit of being 15 minutes late every day, and if necessary bring it up with the person you report to. Do things by the book because you may not be the person who makes that termination decision. But you absolutely will be in the employee’s complaint against the company if you have been letting things slide. You don’t want to take a star role as the manager with authority who told the terminated or otherwise disgruntled employee what they did was ok, therefore showing bad motive by the company, or duplicity on your part. And your star appearance in that complaint will become the albatross around your neck at the company.
Unfortunately, there is no way to spot and avoid the employees who will become lawsuits. But there is a way to make it less likely that your name will show up on the pages of a complaint, and in the annals of history should it come to that. The managers at Price Waterhouse who improperly considered Ann Hopkins’s gender to be a factor in her bid for promotion have gone down in history as bad male managers. Don’t be like them.
Beth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.