Employment law attorney Michael Maslanka reviews the book The Good Black: A True Story of Race in America by Paul M. Barrett. Review follows book’s description of a real-life story of an African-American who went from motivated employee to suing his employer for employment and race discrimination.
Ever wonder how a once successful and motivated employee becomes a party to an employment discrimination lawsuit? If so, a new book, The Good Black: A True Story of Race in America
Successful and motivated
Larry Mungin is an African-American who appeared to have “made it.” He grew up poor, raised by a single parent, in Brooklyn. His mother taught him, like most mothers do, that with hard work he could get ahead.
Mungin did work hard. During his senior year in high school, he applied to four Ivy League colleges — Harvard, Princeton, Yale, and Cornell — and was accepted by all four.
It’s not easy being a poor black man in a rich white man’s world
Mungin went to Harvard, where he first began to recognize feeling “the pride of the insider and the discomfort of the outsider.” He wanted to be accepted into the mainstream of society, the majority of which was white. However, he never felt totally comfortable in the white student culture. He always felt as if he had to prove he was one of the “good blacks,” not a troublemaker, criminal, or drug dealer.
Even though Mungin was successful at Harvard, he felt the need to distinguish himself from the majority — who had grown up rich and privileged. He decided to take a break to join the Navy. While in the Navy, he made the decision to go to law school.
Mungin was accepted to Harvard Law. When he hit the job market, he was every recruiter’s dream: a distinguished military veteran with a double Harvard degree, and (as some employers would point out) a minority.
Houston-bound
Mungin started out his legal career in Houston, working in corporate law. During his first year, he was lured away by the Houston office of a large New York-based firm to work on bankruptcy cases. Bankruptcy was booming in Texas, and Mungin enjoyed working here. He did not, however, feel as if he had a good chance at making partner. His performance review noted that he seemed to be “coasting.”
Mungin took this as the hint it was meant to be and left Houston for what he hoped would be greener pastures.
They eat their young
Mungin eventually ended up at the Washington, D.C., outpost of Katten Muchin & Zavis, a Chicago-based firm that had 400 lawyers and was growing. Now, as anyone in the legal profession will tell you, associates at big law firms do not have it easy. They put in long hours to meet their billable hour quotas, handle the pressure of trying to bring in “new business,” and put up with the sometimes overgrown egos of the partners, all for the promise of the elusive partnership status. (To a young associate, it can feel like the billable hours are required so a partner can make his BMW payment or buy a new boat.)
In law, however, like any other business, there’s only so much room at the top. Not everyone is going to be a partner — even good performers may not make it. Mungin must have known this.
Treat me right
Simply put, while Mungin was at Katten Muchin, he was treated harshly. Of course, so were many other associates. White bankruptcy attorneys felt that Dombroff’s (the head partner in the D.C. office) treatment of them was “bullsh ” and left. Mungin hung on, hoping to hitch himself to the head partner’s rising star.
Mungin, however, felt indignities from both the D.C. and Chicago offices. For example, he traveled to Chicago to meet with the head bankruptcy partner, only to find that the head guy wasn’t going to meet with him, but some lower-level guys were. The firm cut his hourly rate to a level that was less than other associates with his experience. Further, the firm “forgot” to review him and give him his bonus.
When a partner yelled “as long as you get a paycheck, do as you’re told” to Mungin, he believed that that summed up the firm’s attitude toward him and other blacks.
Things come to a head
Things came to a head when Dombroff broke off from Katten Muchin to start his own firm. (By this time, a major client for whom Mungin did a lot of work substantially cut back on the work he sent the firm.) He took about 30 associates with him and let about six go. He was focused on insurance defense work and had no need for a bankruptcy attorney. That left a skeleton staff, including Mungin, at Katten Muchin’s D.C. office.
Quite frankly, no one at Katten Muchin knew what to do with Mungin. They halfheartedly offered him a position in their New York or Chicago offices. No one, however, ever sat down with him and directly discussed his options. He took a severance package and left.
A lawsuit is born
My dad was a judge for more than 25 years in Minnesota. When he left the bench, he had offers to join big civil law firms. He opted for criminal defense. When I asked him why, he told me, “People who sue are very angry people — my clients [criminals] are easier to deal with.” Dad was right; people who sue are angry.
Mungin was angry. Very angry. Like many other people who sue, he used that anger to sustain him through the lengthy and emotionally draining process of litigation. Though it may seem unfair to Katten Muchin, he was angry about all the racial indignities he had suffered over his whole life. The firm was the proverbial straw that broke the camel’s back.
Mungin’s day in court
Mungin’s strategy was simple. He was qualified and did a good job. Katten Muchin, however, isolated, ignored, and overlooked him. Because the firm had never complained about his performance, it must be because of his race.
The law firm used what lawyers call the “equal opportunity jerk” defense. It goes like this: We treat everyone equally poorly, regardless of race; therefore, we do not discriminate.
Mungin shone in the witness box: proud yet understated, a good son, a hard worker, a man not unlike the jurors.
Katten Muchin did not fare as well. The “equal opportunity jerk” defense went over about as well as a lead balloon. Look at it this way: If you were a criminal trial juror and the accused said, “Don’t convict me for robbing First National Bank (like I’m charged with) because I was robbing Second National Bank at the time,” would you let him off? I don’t think so. The same is true with civil juries. They will punish for unfairness and bad behavior. At least, in Mungin’s case they did.
The jury was out for about two hours. Their verdict for Mungin: $1 million in actual damages and $1.5 million in punitive damages (that’s $2.5 million total).
Race played a role — or did it?
Katten Muchin appealed, of course. The court came to a 2-1 decision. What did they decide? Consider this: Nine people (eight jurors and one trial court judge) had found evidence that Mungin was discriminated against. Those nine people got to look the lawyer and the law firm in the eye and judge their credibility.
So just what did the appeals court decide? Sorry, you’ll have to read the book to find out. What did the author conclude? Again, you’ll have to read the book for that. What do I conclude? Again, read the book, and you be the judge.
So what does it all mean?
What can we learn from Mungin’s story. Here are a few of my thoughts:
(*) If you don’t know where I’ve been, you can’t know where I’m coming from. One thing we hear frequently from our clients during an employee’s deposition is, “How can he lie like that?” Of course, sometimes a witness is blatantly lying, but more often than not, the differences can be explained by his perceptions. Here, Mungin’s perceptions were based on years of seeing and experiencing discrimination, sometimes subtle, sometimes not so subtle. Katten Muchin’s perceptions were based on their experience of being members of a discriminated-against minority group themselves (Jewish) and supporting equal rights. Whose perceptions were more valid? Think about that the next time an employee comes to you with a complaint before you dismiss it as invalid.
(*) It’s not the economy, stupid. One question we always like to ask first when teaching management about unions is, “What drives employees to join unions?” Inevitably, someone will pipe up with “MONEY.” Years of experience, however, have taught us that employees’ dissatisfaction isn’t based on money. Rather, it’s based on their perception that management cares, listens to them, and treats them fairly. Here, Mungin made a lot of money (more than $100,000 a year). Still, he was angry because he was ignored and treated harshly.
(*) Jurors need a reason to vote for you, not against you. They will punish you for treating an employee unfairly, whether or not they believe race was a factor. The “equal opportunity jerk” defense should be saved for arguments a jury will never hear.
(*) Little things mean a lot. Little things that may seem inconsequential to you can mean a lot to a jury and an employee. In Mungin’s case, for example, the firm made him drive two hours (from D.C. to Baltimore) to save a few bucks on the cost of a flight to Chicago. When he got to Chicago, his meeting with the lead bankruptcy partner about his career — which Mungin characterized as critical — was canceled. It may have happened for prudent business reasons. The jury, however, heard from a partner at the firm that Mungin “fell through the cracks” on his performance review and raise. This infuriates a jury. Employees need to be given information about career development, and performance reviews (especially if they are tied to promotions and pay raises) need to be done in a timely manner.
(*) Don’t assume that jurors will understand your industry conventions. Every attorney may know that high billables and client recruitment pave the road to partnership. However, no attorneys will be on the jury. The same is true for any other industry. The jurors are the peers of the employee, not of management. Jurors don’t buy into unwritten rules or things that go without saying. They believe the employee when he says, “Nobody told me X.” And you know, if the employee is a minority who didn’t have any mentors or close relationships with the whites in his office, it might be true. As we’ve said before, the more something goes without saying, the more it needs to be said.
(*) Lawyers make the worst witnesses. Just like doctors are the worst patients, lawyers are the worst witnesses. Don’t ever let your attorney become a fact witness if you can avoid it. Don’t hire your attorney to do the investigation (the lawyer, even if a good witness, will never be able to shake the image of a hired gun). Do it yourself. The jury will like you better.
(*) Watch out for reverse race discrimination. Here, when Katten Muchin offered Mungin the transfer, it terminated other associates. Those associates were white (all the other attorneys in the D.C. office were white). Those associates apparently went on their merry ways. The book never discusses the firm’s reason for this apparent disparate treatment in Mungin’s favor. The firm (and other employers) need to beware: More and more whites are suing and winning for “reverse” race discrimination.
(*) Don’t let decisions be made by inaction. Katten Muchin suggested to Mungin that he transfer to Chicago. The suggestion, however, was just that — a suggestion — couched in vague language with no details about the opportunity. (Perhaps the law firm really didn’t want him to move — at least that’s the message he — and probably the jury — got.) Here’s a rule: Hiding behind the log is not an option. If they wanted Mungin to move, they should have said so directly; if not, they should have said so. Here’s a second rule: Put the offer to transfer, including the important details (like salary and key responsibilities), in writing. This will clear up any misunderstanding at the time and stop the employee from having a different recollection of the offer during litigation. Make the letter user-friendly and suitable for a demonstrative aid at trial.
(*) A ‘favor’ can backfire. Here, Katten Muchin claimed it tried to “save” Mungin — like it was doing him some great favor. However, the best thing the firm could have done for him when the big client took the bankruptcy work away would have been to cut him loose. Instead, they made promises of future work and opportunities that never materialized. Remember, treating someone “favorably” (by not being truthful about opportunities or performance to spare him the harsh reality) is discrimination and can end up being harmful to his career (i.e., an adverse action).
(*) Don’t underestimate the employee’s jury appeal. Employees tell a simple and sympathetic story. Here’s how it goes: “I was treated badly, then I lost my job; it wasn’t my fault, and I’m suffering because of it.” Don’t assume that because an employee was difficult, the jury will see it the same way after a few hours of testimony. Remember, you hired the employee, sometimes after a day or more of interviews, and you didn’t see it then. So if your defense strategy is “a jury will see what a loser this guy is,” you might want to reconsider it.
(*) Discrimination is a subtle thing. We’ve come a long way since the 1950s, when whites and blacks had to use separate facilities. We’ve come a long way since the enactment of Title VII, when some unions had separate employment tracks for whites and blacks. In many ways, however, we’ve only just begun our journey to eliminate discrimination. This book will challenge you to think about the subtle ways your business may be discriminating — by inadvertently excluding people. Once you recognize it, you can begin to eliminate this subtle, unintended discrimination by including people in activities, providing mentors, and having open lines of communication.
Michael Maslanka is the managing partner of Ford & Harrison LLP’s Dallas, Texas, office. He has 20 years of experience in litigation and trial of employment law cases 
and has served as Adjunct Counsel to a Fortune 10 company where he provided multi-state counseling on employment matters. He has also served as a Field Attorney for the National Labor Relations Board.
Mike is listed in The Best Lawyers in America and was selected as a “Texas Super Lawyer” by Texas Monthly and Law & Politics Magazine in 2003. He was also selected as one of the best lawyers in Dallas by “D” Magazine in 2003. Mike has served as the Chief Author and Editor of the Texas Employment Law Letter since 1990. He also authors the “Work Matters” column for Texas Lawyer.
Though I have not read the book as yet
(I will) the perface or introduction to the contents of the book is interesting due the description of what took place. However, the title is not one of my favorites, due to the fact that I am and African Amercian. The terms are extremely insulting and condesending “The Good BLack”, although due to the intro “understandable” based on so called society vs people of color. The sad part is that it just reminds African Americans that things have not really change, just the way that it’s done. The books intro has aroused my interest, therefore, I will make a full synopsis when I have completed the book.
Thank you!
The review by Michael Maslanka is right on target. Anyone who has ever been involved in a court trial of any kind knows the examples cited are the way it is in the real world.
There is no doubt that Juries generally take their responsibility seriously. In my opinion, the defendant must present compeling evidence to support their decision. If they don’t, the jury will rule for the plaintiff, the color of the skin generally means little in the outcome of the trial.
I am a Black-American male. I read this book when it was intially published. It was been the focus of a great deal of analysis. I’ve worked at major legal, accounting, and banking concerns in New York City (in a support staff capacity). It was no picnic for blacks at all. Mungin was simply trying to fit in and do well. Unfortunately, his career was destroyed.
His experiences are not much different than a lot of black professionals who have to put up with subtle and not so subtle racism in their treatment, compensation, and career paths.