There are hundreds of ways an employer can get sued, and sooner or later, your ticket is going to be punched. In 2006 alone, the EEOC received more than 27,000 charges of race discrimination. Gender discrimination claims (including sexual harassment claims) represent nearly one-third of all filings with the EEOC over the past 10 years.
Experts report that claims of family responsibility discrimination, in which workers allege they are treated worse at work because of their responsibilities in caring for children, elderly parents or sick relatives, have increased nearly 400 percent in the past decade. And legislation is pending that, if passed, would expand the statute of limitations on wage claims, prevent discrimination based on sexual orientation and gender, and prohibit employers from using genetic information in employment discrimination.
But to me, the skyrocketing EEOC charges and employment litigation seem somehow out of whack with reality. It is hard for me to believe all this discrimination is taking place. As always, there are some exceptions to the rule. The recent case in which supervisors allowed an electrical wire in the form of a noose to hang outside a workshop and let graffiti espousing racial hatred remain in workshop bathrooms is one example of a company that deserved everything it got (substantial punitive damages were awarded to the plaintiffs). Likewise, the woman with severe allergies who had a life-threatening reaction each time air freshener was sprayed in her vicinity deserved to win against her employer, who insisted on keeping the timed air-freshener units blasting several times a day.
Here’s my point: I’ve been defending employment discrimination cases for more than 30 years. I spend an enormous amount of time sitting in depositions and in courtrooms listening to employees complain about their jobs. And after 30 years, there seem to be three behaviors common to plaintiffs: They demonstrate passive-aggressive behavior; they exaggerate or lie; or they refuse to accept personal responsibility for their own poor performance. Sometimes plaintiffs have all three behaviors. Other plaintiffs may exhibit only one. But the fact is these three behaviors cause trouble in the workplace:
The Passive-Aggressive. The American Psychiatric Association has dropped this behavior pattern from the most recent Diagnostic and Statistical Manual of Mental Disorders, but anyone who has supervised someone in the workplace knows the pattern when they see it. The employee does not respond to the supervisor’s e-mail request for information without several e-mail reminders. The employee who says perkily, "Can do!" to a task request, but then performs the task poorly in an angry fashion. The employee who accepts an assignment, but then stands in the coffee room and complains bitterly to co-workers about his heavy load. You know it. You’ve seen it.
The Exaggerator/Liar. Employees who exaggerate or outright lie are a huge problem. Oftentimes, those folks create more uproar because of their lies than the actual problem ever caused. Just ask Richard Nixon or Bill Clinton or Marion Jones. Lying and exaggerating are common traits among plaintiffs. A talented fudger can turn a single inept comment into a raging lawsuit. Here’s an example:
A few years ago, I defended an employer against 16 plaintiffs who were alleging race discrimination. Plaintiffs’ Exhibit 1 was a poster titled "Five Rules for Raising Monkeys." Included among the rules were "monkeys should be fed or shot" and "the monkey population should be kept below the maximum number the manager has time to feed."
The significance of the "monkey poster" grew larger with each plaintiff who testified. Every one of them had seen it. Every one knew without doubt that the poster was clearly a racial slur against the African-American employees in that facility, and their emotional damages were enormous.
On cross-examination, however, the jury learned the truth: the "monkey rules" were an excerpt from an article written by Kenneth Blanchard (of One Minute Manager fame) and published in the Harvard Business Review describing management tips for dealing with employees who dumped problems and work on other employees’ desks. Race had nothing to do with it. Plaintiffs’ Exhibit 1 disappeared from the courtroom and was not seen again.
Another example of an employee/plaintiff putting a spin on an innocuous action is the ex-employee who, in order to show that her boss was arrogant and self-centered, claimed that he had given a picture of himself to each member of the office staff at Christmas. Not quite. The supervisor had given each employee an expensive sterling silver picture frame and, to be cute, included in the frame a Xerox of one of his baby pictures. Now, that may have been a silly thing to do, but it didn’t show the arrogance and animus the employee hoped it would.
The Blamer: I’m no statistician, but based on my experience in litigation, there is a direct correlation between someone becoming a plaintiff and his or her failure to accept personal responsibility for poor performance. Workers who blame co-workers, their supervisor, their job assignment or their lack of training for their own poor performance often take the next step of blaming a supervisor and claiming discrimination or retaliation instead of admitting poor performance.
So what’s an employer to do? Screening to weed out these behaviors is difficult. Job and personal references are not always helpful. If the candidate was a problem at her previous job, chances are good that the former employer only wants to put the sorry experience in the past and may be afraid to be candid in her assessment of the applicant’s abilities. A discrete inquiry as to the applicant’s education and previous jobs may, however, yield substantial information to determine if an applicant has exaggerated his past. Anyone who claims to have a degree they don’t or fabricates previous job history will no doubt exhibit these negative behaviors in the new workplace.
A supervisor’s first assessment of a candidate is at the initial interview. Remember that interviews are inherently stressful and it may be hard to read a nervous applicant, so schedule plenty of time for each interview. Use standard questions, remembering to avoid direct or indirect questions regarding age, sex, religion or other protected categories. But don’t settle for stock answers. Probe applicants with follow-up questions on how they would handle a specific situation, what they would have said and what they would expect the next step to be.
Identifying the "it’s not my fault" behaviors often takes some time and sometimes cannot be accomplished in the initial interview. Watch for telltale signs in speech and behavior. My experience in interviewing job candidates is almost identical to those frequent occasions when I am picking a jury. A potential juror who refuses to accept responsibility for his own actions will more likely than not side with a plaintiff who complains of discrimination when counseled for performance problems. Likewise, a candidate who complains about a previous employer may be telling you something about his inability to accept responsibility.
When interviewing, ask the prospective employee to identify some problems in his previous workplace and the cause of the problems. His answer will go a long way in identifying the candidate’s score on the personal responsibility scale. In jury selection, I find that people with a high sense of personal responsibility make good jurors, and quizzing prospective jurors about their accomplishments (whether keeping their checkbook error-free or rebuilding a family room) all help identify individuals with a high sense of personal responsibility. The same holds true for employees: the higher the employee’s score on the personal responsibility scale, the less likely that litigation will occur.
Identifying the passive-aggressive types, sorting out the liars and exaggerators, and avoiding the blamers will help employers reduce their litigation risk in 2008 and beyond.