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‘Emotional’ employment claims present specific challenges

By: DOLAN MEDIA NEWSWIRES//December 6, 2012//

‘Emotional’ employment claims present specific challenges

By: DOLAN MEDIA NEWSWIRES//December 6, 2012//

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By Julie Campanini
Dolan Media Newswires

As employment cases continue to flourish across the country, companies are spending millions of dollars litigating claims of retaliation, discrimination and harassment — the “emotional” claims that can be difficult to defend.

The unique aspects of a particular venue notwithstanding, there are common factors present in these cases that matter to jurors, including the company’s policies, procedures and conduct; the plaintiff’s credibility; and management’s credibility.

Policies and procedures

Jurors will examine the policies and procedures of companies faced with litigation. They look to see whether any policies existed regarding the particular issue at hand and, more importantly, how diligently those policies were enforced.

Too often a company has standard policies or even a detailed employee handbook in place, but fails to follow or enforce them with any consistency. Jurors expect the policies to be enforced under the strictest interpretation, especially when they are being asked to decide whether the policies were violated.

Companies get into trouble with jurors when management indicates on the stand that “some” incidents of foul language are subject to disciplinary action or “most” supervisors participate in sensitivity training. What accounts for the discrepancy? Jurors consider any lapse in policy enforcement to be, at a minimum, evidence of inherent weaknesses in the system and, at worst, wrongdoing/retaliation/favors.

Despite a company’s best efforts to train its supervisors and put together clearly written rules, ambiguous policy enforcement remains one of the biggest problems for companies at trial. It can turn a black-and-white case of “plaintiff was fired because he broke the rules” into a case full of gray areas and “he said, she said.”

Those gray areas almost always favor a plaintiff in these “emotional” claims. Ambiguity in a lawsuit increases the reliance on strong persuasion, and anyone who has tried a case with emotional undertones recognizes that it’s better to eliminate the ambiguity than to be faced with having to persuade a group of people to “put their emotions aside.”

Regular training and strong leadership on these issues can help mitigate any notion that the company doesn’t care, isn’t fair or allows managers to make disciplinary decisions with too much latitude and discretion.

Jurors also dissect prior company conduct. While what the plaintiff may have done five years ago by way of violative behavior or poor performance is off limits, the company’s conduct has no statute of limitations for jurors. Jurors are interested in even anecdotal history of questionable conduct, e.g., “someone told me that company has never promoted a woman above middle manager.”

Jurors will look to a company’s handling of similar issues over time. If documentation is sketchy, if disciplinary action is inconsistent and promotions homogenous, the company will suffer.

That being said, jurors also like to see improved handling of situations over time. Counsel should highlight management or policy changes, especially those that provide protection for employees. Policies regarding promoting from within are important. Company goals set to attain a certain number of women managers or a top-down approach to compliance and safety training are also seen as pluses.

The fact that jurors are receptive to such information underscores the need to create a narrative story and thematic anchors that can incorporate all of these important elements; counsel cannot simply put forth a tit-for-tat defense.


A plaintiff’s credibility accounts for a large part of what jurors examine when evaluating employment cases. Most plaintiffs in a typical discrimination, harassment or retaliation suit have a spotty work history and/or performance problems. The challenge for counsel is to bring these to the jury’s attention subtly — not pointing out all of the plaintiff’s problems in the first five minutes of the opening. Weave the facts into a comprehensive narrative that results in a picture of someone who is troubled and difficult.

Sometimes counsel must even acknowledge the employee’s strengths while also highlighting that he could not overcome other performance or disciplinary issues. At the end of the day, was it more likely that this plaintiff was discriminated against based on his race or is this lawsuit born from his anger about losing another promotion because of his inadequate work product?

Plaintiffs usually want to focus on one or two incidents to prove their case; defense counsel needs jurors to look at cases holistically and see the patterns and problems that emerge over time.

That being said, jurors generally perceive incidents that occurred years prior to the complaint and behavior outside the workplace as irrelevant to specific claims included in the lawsuit, regardless of how essential they may appear to the overall story.

Jurors will penalize counsel for attacking the plaintiff. In post-trial interviews, jurors have faulted the defense for bringing in ostensibly irrelevant information and “trying to turn us against the plaintiff.”

That propensity illustrates a tough barrier for defense counsel: Jurors tend to identify with the plaintiff. Most jurors have at least had some employment history and probably some negative work experiences to go along with it.

With a general disdain for corporations and supervisors, jurors search for a similar experience or commonality with a plaintiff, e.g., “I was treated poorly once, too.” That puts companies in the worst position possible: facing jurors who are searching for any reason to find against the company.

If counsel can strategically bring a plaintiff’s credibility into question early on, jurors will have a more difficult time believing the plaintiff’s story.

Just as a plaintiff’s credibility is critical to an employment case, management’s credibility is equally as critical. Too often, a senior person is asked to testify about the company’s policies and procedures but cannot speak to the actual incident or subject of the claim. Jurors find that kind of testimony unhelpful, as policies are meaningful only if they are enforced.

Jurors want to hear from someone closer to the incident or issue, someone who can provide them with information they can use to make a decision.

If a “distant” company person must testify, point out during examination that the person on the stand is only there to provide background information, not comment on a specific incident. That will give context for the exchange and set the jurors’ expectations that this senior person has no knowledge of what happens at the off-site warehouse, for example.

While jurors expect the CEO and other high-level executives and managers to be well versed in the micro-operations and every human resources investigation, both counsel and clients know that level of detailed knowledge is unrealistic.

Educating jurors on the job of the CEO or other senior person as well as some of the pertinent organizational issues of the company can go a long way in preserving witness and company credibility.

Employment cases that go before a jury are difficult because jurors can comfortably and confidently discuss the case — or pretend they can. Their own work experience is more likely to resemble that of the plaintiff (how many executives serve on juries?), and that makes them “experts.”

Jurors take employment cases personally and think it is important to take a stand against companies for all employees who are treated unfairly. That mandates that counsel be even more rigorous in their defense.

When policies and procedures are ambiguous or missing, company witnesses are polar opposites from what jurors expect and the plaintiff appears more credible than anyone at the company, the chances for victory are greatly diminished.

But by organizing the facts, preparing the witnesses and creating a compelling and comprehensive story, counsel can greatly increase its chances of success at trial.

Julie Campanini is a senior consultant at Trial Insights, Providence, RI. She can be reached at 401-339-7580.


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