If you are representing an employee in an employment case, be
alert for employer behaviors that can be capitalized on:
Deviations from established policy
Frequently, plaintiffs are discharged, or subjected to other
adverse actions, in situations where applicable workplace standards
are not applied as they ordinarily are. Hiring and promotion
standards, compensation plans, performance evaluations and
disciplinary procedures may not be utilized at all, or may be
manipulated by an employer to penalize a disfavored employee, to
favor others or to give vent to bigoted beliefs.
Failure to apply long-held policies can be effective evidence of
discriminatory animus and pretext. For example, it happens
frequently that an employer cites an employee's mediocre
performance as grounds to deny the employee a promotion. Yet almost
as frequently, the employer has not applied the same standards to
co-workers.
Of course, this suggests that performance was not the employer's
real motivation. See, e.g., Masterson v. LaBrum &
Doak, 263 FEP 808 (E.D. Pa. 1993) - a judgment for a female
plaintiff denied partnership in a law firm for failing to generate
business, where the employer never told the plaintiff she was
expected to generate business, but did tell the plaintiff's male
counterparts; see also Kirschner v. Office of the Comptroller
of New York, 973 F. 2d 88 (2d Cir. 1992) -- the plaintiffs'
department chief had insisted that the city administer civil
service examinations in the years before the plaintiffs sought
promotion, then failed to do so once the plaintiffs (older persons)
sought promotion; held, sufficient evidence of discriminatory
intent.
There are some common variations on the "deviation from supposed
policy" theme. Some employers, rather than ignoring a policy or
work rule, will actually change the rules to authorize an adverse
action, or a decision not to take favorable action, that would have
been prohibited under the existing rule. If this occurs, you can
argue that the employer planned to make a decision violative of the
existing rules, and therefore changed the rule to legitimize its
decision post hoc.
Regardless of its form, this kind of employer approach arises
frequently in promotion cases, which are often rife with procedural
irregularities. (For example, a favored candidate applies after the
deadline, but is considered anyway; the favored candidate receives
interview questions in advance; the employer manipulates hiring
criteria to fit the favored candidate's credentials.) See, e.g.,
Farber v. Massillon Bd. of Educ., 917 F. 2d 1391 (6th Cir.
1990) -- a trial court's failure to find pretext clearly erroneous
where the ultimately successful candidate for promotion, who lacked
the minimum 10 years' experience required by the handbook, was
deemed qualified only because the employer tailored the job posting
to limit the experience requirement to four years; Bergene v.
Salt River Project Agr. Imp. and Power Dist., 272 F. 3d 1136
(9th Cir. 2001) -- summary judgment for employer reversed where,
inter alia, the employer awarded promotion to a male employee who
qualified for the position only after the employer altered the job
description. Similar patterns arise in layoff cases where layoff
criteria are manipulated to favor or disfavor particular employees
or employee categories.
Sources of workplace rules include union contracts, company
handbooks, written stand-alone policies and past practice. These
sources provide the standard from which the employer may be
deviating in your case.
Punishing the victim in harassment or other internal
complaint cases
Employer responses to an employee's internal complaints of
harassment vary widely. In many cases, the employee's complaints
are treated as the problem, because they disturb the status quo of
the workplace and often implicitly challenge its power
relations.
The victimized employee unexpectedly may find herself the object
of a personnel action, such as transfer or a change in title or
responsibilities. This action is often accompanied by an employer
statement of beneficent intent, such as the goal of separating her
from a harasser. Moreover, it is routine for the victim to
experience shunning or exclusion in the workplace, especially where
the perpetrator has a power advantage over the victim -- for
example, as the victim's supervisor.
Often an employer's mere inaction punishes the victim. For
example, the employer may drag its feet in investigating the
victim's complaint; the harassment continues; and the employee
remains stuck in an untenable situation. On the other hand, if the
employee reacts to the situation in a manner commensurate with its
seriousness -- for example, by taking a medical leave of absence --
the employee often will be penalized for malingering, lack of
commitment to work, etc. If the employee quits, that "proves" to
the employer that she was just oversensitive or lazy, or cynically
setting up the employer for litigation.
An employer's choice to focus its response on the harassment
victim rather than the perpetrator may be powerful evidence of
retaliation. A plaintiff in such circumstances should return the
focus to the employer. Highlight the actions that the employer
could have taken to address the problem without punishing the
victim -- for example, by transferring the perpetrator, not the
victim.
Similarly, you can highlight all the steps the employer did take
that hurt the employee, and explain why those steps were
inappropriate -- for example, declining to punish the harasser, or
leaving the harasser in place as the victim's supervisor. See e.g.,
Billings v. Town of Grafton, 515 F. 3d 39 (1st Cir. 2008)
-- a summary judgment was in error where the plaintiff complained
about a supervisor's harassment and was subsequently transferred to
a different office; Davis v. City of Sioux City, 115 F. 3d
1365 (8th Cir. 1997) -- a retaliation verdict for the plaintiff was
upheld where the plaintiff, after complaining about a supervisor's
harassment, was involuntarily transferred to a less-desirable
position.
Focus on the plenary powers that the employer has in the
workplace: the employer had innumerable options, but only chose to
pursue options that were harmful to the plaintiff.
Ellen J. Messing is a partner and Kevin C. Merritt is an
associate at Messing, Rudavsky & Weliky PC, a Boston-based firm
representing employees and unions.