Lessons from The Jury Box: What Juries Dislike Most About Employer Decision Making. Importance of Juror Attitudes

Transcription

1 Employment, Benefits and Labor Briefing: Lessons from The Jury Box: What Juries Dislike Most About Employer Decision Making Presented by Anthony B. Haller, Blank Rome LLP Susan L. Bickley, Blank Rome LLP Anne Martinson, Johnson & Johnson John Bogan, Jr., Cigna Arthur H. Patterson, DecisionQuest Importance of Juror Attitudes Most jurors have experience as an employee, but not an employer Jurors bring their workplace experiences with them into the courtroom 160 1

2 What Can Go Wrong Without A Good Story to Tell 161 Significant Jury Awards EEOC v. Hill County Farms (May 2013): $240 million jury verdict for 32 intellectually disabled workers Rodriguez v. Valley Vista Services (February 2013): $21.8 million award to customer service representative who was terminated while on medical leave for panic attacks Turley v. ISG Lackawanna Inc. (June 2012): $25 million award to steel worker who suffered hostile work environment, where employer failed to take steps to abate the offending conduct Munoz v. Sociedad Espanola (January 2012): $2 million for wrongful retaliation based on filing of age discrimination suit 162 2

3 Key Considerations Understanding Juror Decision Making Juror Expectations of Employers and Employees Implementing Strategies to Manage Risk 163 The Importance of Storytelling Jurors make sense of your case by creating a story with the facts, evidence, witnesses, and events

4 Jurors Fill in Gaps Based on Their Own Attitudes and Experiences Recent research shows that 2/3 of people will remember hearing or seeing things that they never heard or saw, because their memories fill in the blanks. A cohesive story provides the organizing principle for key facts Makes jurors more receptive to your version of events Makes facts more memorable to jury 165 Understand and Meet Jurors Expectations Juror expectations derived from personal experience Story should be consistent with juror expectations If your story fails to meet juror expectations about how the world works, story is less likely to be accepted as organizing ii principle i 166 4

5 Attitudes and Beliefs Act as Cognitive Filters What Is Sent: Evidence What Is Received: Perception 167 Filter: Pre-existing Attitudes & Beliefs How People Make Decisions Through Social Media we now have unprecedented access to the public s conversations, attitudes and opinions. This provides valuable insight into the filter which influences the fact finder s perception What Is Sent: Evidence What Is Received: Perception Filter: Pre-existing Attitudes & Beliefs Attitudes and Beliefs Act as Cognitive Filters 168 5

6 Juror Expectations of Employers and Employees Jurors view employment as an agreement with mutual obligations Employer is expected to treat employee fairly Fairness is incapable of precise definition, but jurors know it when they see it Employee is expected to perform duties to best of his/her ability and follow workplace rules 169 Meeting Juror Expectations of Fairness Jurors tend to expect managers to have a near perfect understanding of the facts, the legal rules, and the company s policies Jurors impose higher standards of behavior on managers Jurors expect internal processes to be meaningful and to provide notice to the employee and the opportunity for him/her to succeed Jurors discount dscou tpressures on managers age sto meet their own performance goals and frustrations of dealing with poor performance by their employees Jurors expect managers not to react negatively to personal accusations of discrimination 170 6

7 Hypothetical Number 1: ADA Claims Project Manager with seven years tenure Given conditional promotion because of interpersonal skills After promotion, placed on CAP because of abrasive s Diagnosed with depression, granted 6 week leave Asks as accommodation not to be placed in stressful situations Continued performance issues resulting li in CAP Employee laid off in lieu of termination 171 Hypothetical Number 2: Sexual Harassment Claims Secretary alleges that she was groped by executive during company retreat Executive denies wrongdoing, refuses to apologize Investigation conducted by female EEO director, with male Security Director present 6 male witnesses, all directly report to executive, interviewed in company offices, claim no wrongdoing 2 female witnesses interviewed offsite 1 male witness corroborates that executive was intoxicated Investigation concludes reasonable evidence of harassment, resulting in demotion, transfer, letter of reprimand Despite confidentiality warning, executive leaves voic s for colleagues challenging rumors about incident Managers learn of voic s and decide to terminate Executive files suit for reverse discrimination, retaliation, and defamation, claiming investigation was flawed and accepted female version of story only Secretary files sexual harassment suit 172 7

8 Summary of Best Practices Effective Hiring Maintenance ofup to date Policies Notice and Consistent Enforcement of Policies Well Trained Management Effective Performance Management Notice and Fair Investigation/Discipline Process Meaningful Opportunity to Correct Mistakes Empathetic Tone and Tenor of Communications 173 8