Legal Affairs

Jeffrey P. Feuquay, Ph.D., Esq., Associate Editor

Reprise

When I began as Legal Affairs Editor I wrote from the perspective of a very inexperienced attorney with a strong public-sector personnel assessment orientation. Having now seen the world for awhile from a labor and employment lawyer's view, it occurred to me that time may have tempered some of my earlier pronouncements, either toughening them or freeing them from some early excesses. It has.

I am even more convinced that employment law is one of the most hard fought areas of practice, second only to family law in contentiousness. (Only in the family law arena have I gotten death threats.) But, it appears that private-sector employment complaints are moderated more by economic considerations than like complaints in the public sector. That is, public-sector entities appear to focus their human resource efforts on doing it "right" (what is "right" being a source of considerable debate) while private-sector entities appear to focus more on doing it "efficiently," an important but small piece of doing it "right." . While public-sector practitioners bemoan the fact that their counsel will encourage settlement as a cost-saving measure and take such settlement as a personal affront to their integrity, private-sector practitioners seem better able to shrug and move on. Private-sector practitioners appear more accepting of the fact that a cost-benefit analysis determines their litigation posture. These are, of course, gross generalizations. Moreover, I am seeing what I think is a move on the part of the public-sector to focus more and more on cost rather than defending what is "right," possibly as a result of declining budgets. I'm not certain where this trend ends, but I am very uncomfortable with the long-term damage it can do, to practitioners and organizations. I am now even more firmly convinced that the settlement of frivolous lawsuits has tremendous long-term costs - both in its encouragement of more lawsuits and in being perceived as undermining good employees trying to do good work.

I still believe that not surprising people, and treating them fairly and reasonably will eliminate most lawsuits. Operating legally will eliminate several more. Frivolous lawsuits will still come, but will come less and less often if the organization makes them unprofitable through an aggressive defense.

Early on, I opined that good employees who are treated badly can often be mollified with a simple apology. This I have now confirmed in five separate federal lawsuits. Each of the former employees, without exception, said that she would not have sued the company if it had simply listened to her complaints of sexual harassment and sexual battery, investigated, and taken appropriate action. Each insisted that she would have willingly and eagerly dropped her lawsuit at any time if the company had taken action against the perpetrator. However, by the time defense attorneys heard that message, back pay, front pay and attorney fees and costs had become issues. It is particularly noteworthy that none were particularly satisfied with the monetary settlement, but that the four who found out that the perpetrators were later fired were positively ecstatic. Had the company taken appropriate action immediately, action the company took after paying attention to the complaint, there would have been no lawsuits. On a related note, courts still see prompt and thorough investigations as a legitimate defense to those types of discrimination lawsuits wherein knowledge is not automatically attributed to the employer, i.e., investigations still help even if the person sues.

I also noted in an earlier article that in McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879 (1995), the Supreme Court held that after-acquired evidence may not be a complete bar to recovery for wrongful termination, but may be taken into account when determining the specific remedy to which the employee is entitled. That case limited the effectiveness of employers' searching frantically for some legitimate reason for having fired a person as a way of minimizing or eliminating damages an employee might seek in a lawsuit stemming from an adverse personnel action. Case law continues to accrue that says an employer who takes retaliatory action against an employee for filing a Title VII lawsuit puts itself at serious risk. For example, on August 26, 1997 a Denver District Court awarded Rabah Khatib almost $4 million in a racial discrimination suit when the jury found that Executive Tower Hotel and its owner violated Khatib's civil rights and illegally retaliated against him by filing a countersuit accusing him of theft. Thorough record-keeping and consistency in treatment of employees has long been a hallmark of the public sector, its importance should be self-apparent from the case law. This does not mean that an employee who sues under Title VII is immune from employer counterclaims, but those counterclaims had best be consistent with the practice of the organization towards all employees, not just towards the ones who complain.

See you in court. Jeff Feuquay

Jeff may be reached at P.O. Box 706, Perry, OK 73077-0706; Phone: (580) 336-4908; Fax (580) 336-5366; Net: jeff@feuquay.com. If there is a topic that you would like to see addressed in this column please let him know.