And when an employee files a civil-rights complaint or an employment-related lawsuit, an HR professional has another role to play, one that can save or cost a company millions of dollars: HR as legal guardian.
Like any job, this one can be performed well or performed poorly. HR professionals who learn how to help their companies build a solid legal case-from knowing what to do when a lawsuit hits to how to act on a witness stand-are the ones who can truly make a case.
With ever-rising employment complaints, human resources becomes ever more important. "I'd say there are a lot more HR-type lawsuits today," says Brent Longnecker, national practice director for Deloitte & Touche LLP in Houston. "There's absolutely a trend, and it's most definitely going to continue."
Being a good legal guardian is a skill that can be learned-and should be, soon. Because the only company safe from a complaint is one that never fires employees, that promotes everyone and that has an entirely satisfied, sensible workforce. In other words, no company is exempt.
Civil-rights complaints vs. lawsuits-the differences you need to know.
When employees file complaints with the Equal Employment Opportunity Commission (EEOC), which handles issues involving the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act, they're filing with a federal administrative agency. When employees file a lawsuit, they're filing with a federal or state court.
Each of these forums has its own rules of procedure, and those rules make all the difference in the world.
Dealing with the EEOC has several advantages. First of all, the EEOC offers specialists in the areas of the law under which the complaint is filed. For instance, if an employee reports he was fired because of age discrimination, the case will be heard by a specialist in the area of age discrimination law. This means the case is more likely to be decided by its legal facts rather than its emotional weight.
In addition, many EEOC offices are experimenting with claims categorization, in which claims are placed in A, B or C categories. Claims in the C category are considered discards, while claims in the A category are viewed as potentially serious, with the possibility of further litigation after the EEOC finishes its administrative investigation. At many offices, claims in the B category funnel into an alternative dispute resolution mechanism.
This categorization ensures that if a complaint is unsupported or frivolous, it will be dismissed much more quickly and inexpensively.
Lawsuits are another story. Unlike the EEOC, which maintains a limited scope, federal or state courts allow all types of suits. So a company may face not just employment-discrimination claims but a host of tort claims, which are common-law claims such as defamation or assault and battery that plaintiffs' lawyers increasingly are using.
Because of its wider target scope, a lawsuit ensures a more protracted and expensive proceeding. Lawsuits bring with them, for instance, depositions-witness statements taken under oath by the opposing counsel-which may open up additional claims. Then there are the juries, who are the ultimate, and nonexpert, decision makers.
"The risk to a company with a lawsuit is 100 times greater than with being involved with the EEOC in an administrative proceeding," says Joseph C. Marshall III, director of the employment and labor law group of Dickinson, Wright, Moon, Van Dusen and Freeman in Detroit. "A jury is likely to be more sympathetic to the plaintiff because in [that] situation the plaintiff is an individual, and the company is viewed as being just part of the system. Most people are employees as opposed to being employers, so they have a natural identification with the individual. And most people have had problems in their employment."
Make sure the right people are-or aren't-talking.
The first step to take when HR gets wind of a problem is to contact a lawyer. If the case is a lawsuit, or an EEOC claim that could become a lawsuit, contact a trial lawyer so that person can be in on the game plan from the beginning.
Once a lawyer is on board, HR must establish two basic privileges with that counsel: attorney-client privilege and the attorney work-product privilege. The attorney-client privilege covers communications between the attorney and the client and protects any legal advice the lawyer gives from disclosure in either a lawsuit or an EEOC proceeding.
Work-product privilege protects information gathered to assist a lawyer in offering legal advice. "The importance of having that is if an HR director starts gathering information without that privilege, that information will become subject to disclosure [to the opposing side]," says Marshall. "There will be no way to protect it." (More information on legal privileges affecting HR in a lawsuit will be discussed in the August 1997 "Legal Insight.")
Once the legal logistics are settled-and they should be settled quickly-the next task for HR is to limit internal communications about the issue. This may sound a bit Gestapo-esque in this age of open-door policies and information-sharing, but it's crucial. That's because-and this should be explained to the workforce so employees don't think HR is just being secretive-at a certain level, managers can create what's known as admissions. That means their statements, writings or conduct will be admitted into evidence. Managers could be hauled in front of the EEOC or forced to give court depositions in which they would have to recount their conversations or conduct.
Say a group of managers gets together to speculate over what could have triggered an employee to file a race-discrimination claim. If that's considered an admission, suddenly these managers must recall an after-the-fact casual conversation-"I bet it must be hard to be a black person in this company"-which could become extremely damaging.
Finally, although a competent HR person would've investigated a problem as soon as an employee presented it, HR should investigate again (or for the first time if the complaint was a surprise).
HR should first determine if the company has a policy applicable to the situation that triggered the complaint (a sexual-harassment policy, race-discrimination policy or so forth). If there's an applicable policy, HR must decide if that policy was followed. For instance, if an employee reported a sexual-harassment complaint to a manager, and the manager didn't follow the usual procedure of investigation, HR better find out why.
"Everyone assumes there's a good reason that an employer has a particular kind of policy," explains Marshall. "If the employer didn't follow the policy, then it raises suspicion in everyone's mind, including the EEOC or judge and jury, that the reason is that there was a need to cover up. The plaintiff's lawyer is going to consider that a gold mine."
If the manager didn't follow the policy and doesn't have a good reason, there's not much HR can do, but the sooner the company's lawyer knows about the problem, the sooner he or she can start working strategy around it.
Lori Taylor, director of HR in the Detroit office of Deloitte & Touche, considers employee interviews one of her most important contributions in a legal case. By talking to everyone involved in a particular incident, she can ensure not just that she has fulfilled her role as a supportive, neutral member of management out to get the facts, but also that she has obtained all those facts.
"There's no magic to it, but I spend a significant amount of time talking to people and asking a lot of probing follow-up questions," she says. "If someone says she or he has been harassed, I ask what that person means by that word. You need to ask the right questions so you're not surprised when you get in front of the magistrate or plaintiff's attorney."
Know what and whom you're dealing with.
After reviewing the case, HR should review the employee who filed it. Pull the person's personnel file and see what kind of employee he or she was. If the employee never got in trouble, received consistently good evaluations, earned promotions and contributed to the company, the organization has a difficult case ahead.
"If that happens, you're caught on your own evaluation of the employee historically," says Marshall. "You're going to have to explain why someone the company considered a significant contributor to the business over the years has now become, according to you, just the opposite."
Of course, conversely, an employee with a checkered history is good news for the company in such a case.
If there are documents in an employee's file that shouldn't be there, by no means should they be destroyed, warns Marshall. In a lawsuit, if the court determines that the company destroyed a relevant document, the court can legally instruct the jury to presume the worst. If there's a question about a particular document, inform the company's lawyer. He or she may know the legal basis for not turning it over.
Next comes the determination of "similarly situated employees." The EEOC or a jury will look at similarly situated employees to see if they were subject to the same problems the plaintiff employee claims. The plaintiff's lawyer will, of course, try to make this category as broad as possible. The defense lawyer will try to narrow the scope to employees who have the same job, education, length of employment and promotional opportunities.
Courts usually rule somewhere in between, so HR should work with the lawyer to estimate which employees will be ruled similarly situated. If for instance, a black employee similarly situated to a white employee was treated quite differently, that will raise eyebrows. Again, if this was the case, there's no changing the problem, but the company's trial lawyer needs to know.
"Even though it doesn't mean that the company did what the claimant or plaintiff is saying it did, it will allow the plaintiff's lawyer to shift the focus from the specific facts of the lawsuit to whether the employer is good or bad," says Marshall. "Once the [opposing side's attorney] has done that, he or she has gone a long way toward prevailing."
Learn the tricks of the trade for pretrial maneuvers and depositions.
Taylor, who in her career previous to Deloitte & Touche testified a dozen times in civil-rights complaints, is an old hand at depositions and such. The first move, she says, will be the requests for related materials. If the EEOC or plaintiff's attorney asks for a lot of backup materials, she says, "you can assume he or she's fishing."
She advises companies to pick and choose exactly what they'll provide. If the EEOC asks for all people discharged within the last three years, with their race indicated, the company should also include a list of promotions in the past three years with race indicated, if that will help the case. Always have the attorney review materials the company is providing, however. He or she may find some dangerous legal subtleties the untrained eye wouldn't catch.
If the opposing counsel asks for a broad range of data that likely will hurt the case, work with the company's lawyer to try to narrow the scope, says Taylor. If the opposition asks for the entire company roster, for instance, see if counsel will accept only the roster for the subsidiary at which the plaintiff worked.
When dealing with the EEOC or Civil Rights Department, HR may be requested to come for a meeting. If statements are going to be taken, Taylor brings with her the people who were directly involved in the disputed situation. That way, if the former employee starts leveling slanted or untrue charges, Taylor doesn't have to say, "But the manager told me…" Instead, she can let the manager speak, which gives much more credibility.
Taylor also brings with her a log of the dates, times and subjects of every conversation she had with every employee during her investigation, as well as any supporting documents she'd like to admit-organized and tabbed. "I go in there looking comprehensive and thorough, which has been helpful," she says. "You can have your act together and not look like you have your act together. This makes sure you look it."
Longnecker warns HR professionals that depositions can at times get pretty down and dirty. "If it's not being videotaped, don't be surprised at anything, because the opposing attorney can scream at you, and there's no way to see that in the [written] deposition. I've had people throw stuff at me. When you walk into a courtroom, it's usually much more civilized-juries don't like bully attorneys. But they get away with an awful lot of things inside a deposition."
If a lawyer starts in on you, keep cool, don't burst out with excuses or explanations-that's just what opposing attorneys want. "The purpose of the deposition taken by the opposing party's attorney is to find out as much information as he or she can about your case," says John Myers, chairman of the labor department at Pittsburgh-based Eckert, Seamans, Cherin and Mellott. "Therefore, make that person earn the information by asking specific questions. Also don't speculate or guess on areas in which you don't have personal knowledge of the answer, and don't get impatient with the attorney who's questioning you."
A few tips can make you an expert trial witness.
Before heading for that witness stand, know two things: what you're going to say and what your attorney's strategy is. If your attorney hasn't told you, ask him or her to clarify the objective of your testimony, as well as the information that's crucial to get across. "HR's client becomes its company's attorney," says Longnecker. "You always have to work for that attorney, because he or she has your company's best interests at heart."
If the attorney gives you an objective that you can't accomplish, tell him or her. The last thing you want is to feel pressured into lying or misshaping the truth. "If an attorney ever tells you to lie, walk away," says Longnecker. "That attorney doesn't care if you're put away because you perjure yourself. Let your lawyer know what you can and can't say. If the attorney feels you won't be able to do what he or she'd like you to do, the attorney will just take you off the list."
Not only is lying on the stand illegal, but Marshall points out that by this point, all people involved with the trial have already made depositions that record their testimony. "I haven't seen too many people try to change their testimony," he says. "In fact, what lawyers do once they get in trial is try to get someone to commit to something different than what he or she has testified to, because they know they'll just crucify the person."
As a final prewitness stand step, HR professionals should go through a mock trial. This will help them get accustomed to saying their testimony, acquaint them with the opposing attorney's likely questions, and let them predict if their testimony will have any weaknesses. This is particularly important if HR has been called to testify by the plaintiff's attorney, because that means the opposing side has something it wants to expose to the jury.
During the actual testimony, don't get rattled-and don't give the opposing side any more information than necessary. "It's almost like a political campaign," says Marshall. "The lawyer's [strategy] in the trial will be to stay on message, stay on theme. Insofar as an HR director is going to testify, the most important thing he or she can do is listen to the lawyer and stay on message."
No matter which side is asking the questions, answer only as much as you need to, preferably just yes or no answers. Don't elaborate-particularly when the opposing side is doing the questioning. "Make them work for it," says Longnecker. "Build your own sandpit, which is your area of expertise. Never go outside the sandpit. If an attorney asks you to opine on some outside subject, [decline]."
HR has one of its most important roles to play at this stage: Being a credible witness. "Unfortunately, the factual resolution of the lawsuit sometimes isn't as important as the emotional reaction of the jury to the situation," says Marshall. "Some [allegations] are horrific. Whether they're true or not, just to have them recounted can cause an emotional response on anyone's part. So jury cases are extremely difficult cases to win from the employer's perspective. Not that it can't be done, but it's not easy. You have to put a great deal of thought to how you're going to counter the natural sympathy that plaintiffs will always receive."
The way to do that is to establish that human resources isn't just a management puppet, that HR professionals exercise a measure of independence and objectivity. If juries suspect that an HR manager was just doing what the top executives ordered, his or her testimony will be fairly worthless.
If on the other hand, the HR professional convinces the jury that he or she is competent and independent minded, that testimony can make the case. This is particularly true in tricky "he said-she said" situations in which no one is outright lying, but rather those involved have different takes on a situation. If the jury sees HR as the neutral party, the resolution HR followed more likely will be the resolution the jury will accept.
Finally, there are the little gestures, actions and impressions that can simply help a jury accept a witness better. As for clothes, Longnecker warns against looking too slick-no suspenders, fancy ties or flashy jewelry. Of course, don't go the other route with dressing too casually either. A witness wants to look like a regular person who's in a responsible job.
While waiting to give testimony, it's OK to do some discreet paperwork, but don't look too high-tech: Leave the mobile phone, laptop and beeper at home. "It's a real turnoff to the people in the jury box."
Limit movement in and out of the courtroom also, Longnecker advises. "You really want to have a sense of humility while you're in there," he says. "It's a pretty big responsibility being there. Those juries are making decisions usually for millions of dollars and affecting lives. They don't need to be disturbed."
While on the stand, try to play to the jury. Make eye contact with jurors. Talk to them like colleagues, but without company- and industry-specific jargon. "The only people in that courtroom that matter when you're testifying are the jurors," says Myers. "Remember that the whole purpose for being on the witness stand is to convince the jurors that they should believe you."
With a little preparation, this is yet another role HR should be able to tackle.
Workforce, July 1997, Vol. 76, No. 7, pp. 66-71.