You’ve got exposure in court even when you think your behavior has been legal, says the Honorable Denny Chin, former U.S. District Court Judge, now Court of Appeals judge. In today’s issue, he shares with HR managers the perspective from the bench.
Picture this, Chin says. You were involved in a termination that led to a discrimination charge. You were confident in your position; however, after a long (and expensive) trial, the jury has just rendered a verdict in favor of your former employee. Management is not happy.
Judge Chin made his remarks at a Labor and Employment Law Seminar put on by attorneys of the Seyfarth Shaw law firm in New York City.
Here’s the story, says Judge Chin: Your employee—who was on vacation at the busy time of the year—was expected to return to work on Monday.
On Monday, her mother called to say her daughter had been “bumped” by the airline and couldn’t make it back. Your employee finally arrived home on Wednesday, but called in sick Thursday and Friday.
When her supervisor checked on the employee’s story, he discovered that she hadn’t been bumped. In fact, she had never even booked the earlier flight. You and the supervisor fired her.
She sued, alleging age discrimination (she was 41 and was replaced by a 40-year-old) and sex discrimination.
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In Judge Chin’s court, the jury awarded her $110,000 and found willfulness, which doubled the amount to $220,000. Your employer’s attorney asked Judge Chin to set aside the verdict, but he could not because of judicial rules that require that the judge construe the evidence in favor of the winning party. The company also had to pay about $300,000 in legal fees.
Reflecting on the case, Judge Chin pointed to four reasons he thought the jury found for the employee.
1. She testified that comments were made to her about her race and her age. The supervisors denied this, but apparently the jury believed her.
2. Other employees had overstayed their vacations and were not fired.
3. The supervisor made a record stating that he thought the employee “might do something dishonest.” The jury didn’t seem to think there was any basis for the suspicion.
4. The jury felt that the punishment was unduly harsh for a 17-year employee and that the organization should have at least considered a less harsh punishment.
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So here’s a situation, Judge Chin said, where you thought you had a strong case, you didn’t expect any problems, and yet you had exposure. And don’t think, he adds, that employment-at-will is going to help much. When the jury sees unfairness or harshness, you have exposure.
Unfortunately, he notes, a good attorney can put together various little pieces, and—in the absence of other reasons—a jury often concludes that discrimination was a factor in the organization’s decision.
In tomorrow’s Advisor, Judge Chin’s tips for avoiding lawsuits, and an introduction to the extraordinary one-stop HR problem-solver.