The Car Wreck You Can Stop

    Not necessarily. For several years, I was an employment attorney working for law firms hired to defend the interests of corporations and businesses against lawsuits and complaints brought by employees. I am also an African-American woman, and even when a case doesn’t involve race or gender, I find that I can frequently detect from the facts just the point at which an EEOC complaint or lawsuit was inevitable. Events and statements that may be seen as merely ignorance or insensitivity by a manager of one race, for example, may be viewed as full-fledged illegal discrimination by an employee of another. For example, a white manager jokingly says to two black interns, "You boys better remember that meeting scheduled right after lunch." As far as the manager is concerned, the reference to the boys’ youth is a form of endearment. To the youths, the comment might be racially fraught and have historical implications.

    Companies could prevent costly legal problems if they also paid close attention to the fact that one group can view something very differently than another. And when difficult questions are raised early on about situations that require scrutiny, there might be fewer embarrassing inquiries down the road. Some employers and lawyers might think that asking questions of employees about potential problems before a complaint is made is asking for trouble. I don’t think so. Businesses that don’t see patterns of employee dissatisfaction, let alone outright discrimination, may find that their blind spots can be extremely expensive later on.

    Last year, a jury awarded a $30 million punitive damages award, later reduced on appeal to $8.25 million and still being appealed, to a group of female employees at California’s Ralphs grocery chain. They sued for allowing a supervisor to harass female employees over a period of about 15 years. The manager just kept getting transferred from location to location, which did not sit well with the jury. Although the employees in that case actually complained, rather than having supervisors come to them, the point is that the burden is on the employer to look like it knows what takes place under its corporate roof and to effectively take action.

    For the most part, clients come to the firms where I’ve worked only after an employee or group of employees has filed a complaint of discrimination with a state agency and/or the federal EEOC, or when the case has emerged as a full-blown lawsuit. There is nothing wrong with waiting until the point of an official complaint, when action has to be taken. And many companies may not have the resources to add another level of watchfulness to already overburdened human resources professionals.

    But monitoring potential employment problems that might blossom into discrimination claims is not like waiting to see if people will get in a car wreck. In a car accident, two total strangers can collide in a split second without having been in each other’s universe just 10 minutes before. In the average case involving employment relationships, complaints and lawsuits are the result of repeated interactions, each affected by the one before it.

    Because discrimination complaints and lawsuits are on the rise, employers should make an effort to note problems before employees articulate them. According to a report by the Equal Employment Opportunity Commission, complaints in 2002 reached their highest level since 1995, with race and gender discrimination making up almost two-thirds of the cases.

    When I read complaints, I try to detect the watershed moments of the case. When did it appear that the employer was deliberately ignoring what must have been obvious to him or anyone else looking? For example, if a disabled employee has asked his supervisor to move meetings to rooms where his wheelchair can enter comfortably and the supervisor is careless about honoring that request on more than one occasion and without explanation, that usually sets the stage for the employee to take action. The supervisor may look at the issue as nothing more than harmless oversight, but for the disabled employee, it could signal a trend and be viewed as a genuine problem. Regardless of the scenario, a frustrated employee can usually find solace in the open arms of a plaintiff’s attorney. Just because an employee files a case, of course, that doesn’t mean she has a good legal case or that the facts presented are valid or even that the person’s motivation is ethical.

    An employment relationship is like any other relationship. When it ends, it’s usually not because of a single incident. It’s a buildup of slights and problems, a snowball that grew large enough to flatten a house. In a personal relationship, only two people are in charge of its success or failure. In the workplace, the employer is the guardian of the relationship between the employee and everyone the employee has contact with on the job.

    In the case of the six women from one department who quit, the situation might have been quite different if a manager had asked the fourth or fifth departing woman about her reasons. Maybe the manager of the department should have been questioned directly. Maybe someone in human resources or upper management should have been more active in the exit interviews. Maybe a particularly astute and sensitive person should have talked with the remaining women and men in the department to gauge the cultural climate.

    It’s never too late to obtain such vital information. If a pattern of employment decisions or changes exists, it may not necessarily be a sign of discrimination. Maybe six women left the department by coincidence. Maybe they were offered better jobs, or a spouse was relocated or one learned she was pregnant. But if you haven’t done anticipatory due diligence and haven’t paid attention to problems before they fester, you might be legally vulnerable against a female employee who feels discriminated against. She might use the previous departures to "prove" the lack of mobility for women, or the lack of sensitivity by management.

    As an employer, you would want to be able to say that you observed the same things that the complaining employee saw, checked into the situation and determined that there was no problem, or you corrected it. Doing this provides a factual defense, and goes beyond that. It’s just the smart and right thing to do.