Why Jurors Fire Back During Wrongful Termination Lawsuits

-A recent experiment by the American Bar Association staged a mock handicap discrimination trial.
A recent experiment by the American Bar Association staged a mock handicap discrimination trial, in which the evidence was stacked heavily in the employer´s favor. After the jury retired, the judge announced that, were this a real trial, he would have thrown out the case because no reasonable jury could find for the plaintiff. But since it was an experiment, he let the jury deliberate. The jury concluded that the employer did not treat the plaintiff ´fairly" - a consideration that was legally irrelevant - and recommended a multimillion dollar damage award.

Jurors can and do believe that some employees deserve to be fired. They´ve worked with the insubordinate jerk or the marginal employee whose poor performance brings the rest of the department down. What they don´t believe, however, no matter how well deserved the termination or how flawlessly documented the poor performance, is that an employee deserves to be humiliated or embarrassed in the process. They won´t forgive the manager who fires his employee while his 8-year old "Take Your Daughter to Work Day" darling stands by watching. Neither will they buy a "the bottom line is the employee deserve to be fired" defense.

I´ve seen many a corporate defendant lose a case by focusing on the technicalities of at-will employment while the jury obsessed about how the employee was treatedin the termination meeting. Not surprisingly, the reasons why an employee files a wrongful termination lawsuit are often the same issues jurors won´t forgive. In this article, we´ll take at how jurors view wrongful termination claims and what this means in terms of prevention and defense.

Juror message #1: The playing field ain´t level.

Corporate defendants start out behind the proverbial 8 ball. Juror suspicions are high, corporate trust is low, and these attitudes are held by a majority of eligible jurors across the nation. In a study conducted by DecisionQuest in 2002 of over 1000 respondents nationwide, 86% agree or strongly agree disclosures concerning Enron and Worldcom have made them much more suspicious regarding corporate conduct and corporate motivations. Of this 86%, over half (58%) strongly agree. The events of Enron/Worldcom are not viewed in isolation but rather symptomatic of an "epidemic" of corporate fraud and misconduct. In the eyes of jurors, corporations beyond the purview of these events also are tainted.

Add this to the fact that jurors start out sympathizing with the plaintiff. Despite the fact that jurors often believe that "there are too many lawsuits" these days, they also assume that the company has done something wrong. Since it takes so long a time to pursue a civil case, they believe the plaintiff must believe in the righteousness of his or her case in order to have pursued it. Jurors also don´t understand the way that legal fees are structured. In addition, jurors tend to scrutinize the plaintiff''s behavior less rigorously than they scrutinize the defendant''s behavior. Thus, the defendant faces a difficult task if it is to convince jurors that it has been fair and has done nothing wrong.

Effective strategy: Go beyond the call of duty.

Many effective plaintiffs´ attorneys gleefully compare phrases in a corporate mission statement such as "respect for human dignity" with the facts of an ugly firing. Senior executives must understand that jurors judge the defendant''s actions not only from a legal perspective, but also from the perspective of fairness and even "courtesy." They also need to realize that that empathy toward employees and reasonable treatment is crucial at all times to prevent the possibility of lawsuits (and to minimize the damage if filed).

This means that corporate executives are well advised to practice the spirit of employment laws as opposed to resting on the laurels of their cleverly worded policies and procedures. For example, the spirit behind harassment laws is that employees have the right to work in a safe and inoffensive work environment. Corporate officials who tolerate bullying managers, who excuse boorish behavior in top performers, and who consistently promote profits over people may not be engaging in unlawful behavior. That doesn´t mean that a jury won´t hand out a large punitive damage award.

Jury Message #2: Don´t leave terminated employees in the dark.

Too many employees are told, "You´re not a fit with this firm," or "This is an ´employment at will´ company," or "We don´t have to give you a reason." In an effort to obtain an explanation, those employees generally go to a phone book, thumb through the yellow pages and find an attorney eager to sue an employer. A person''s race or sexuality has nothing to do with why you''re firing him or her, but these are sensitive issues, and if employees feel they haven''t been given an appropriate reason, they will fill in the gaps. So will the jury, and, no matter what the facts may be, juries tend to be sympathetic to employee.

Effective Strategy: Tell an employee why they are being terminated.

I recommend that employees be told the reason for their termination. There is nothing wrong with responding, "Because of your continued poor performance." Although employers are not legally bound to provide a reason for termination in most states, employees who have been fired tend to press charges if they feel they were embarrassed, persecuted or otherwise treated unfairly during the termination process.

Jury Message #3: Forget at-will employment.

In recent research, a majority of the jurors disagreed that employers have the right to terminate an employee without cause. A smaller, though still considerable proportion of the jurors said it is wrong for an employer to terminate employees in order to reduce operating costs. his attitude is even more widespread if the company laying off workers is profitable, and it is certainly stronger concerning termination of a long-term employee.

While at-will employment is legally sound in many states, the majority of jurors still tend to hold a somewhat old-fashioned idea about companies; that is, that the company owes the employee work (despite any laws to the contrary). Jurors believe that is not enough to allow an employee simply to exist at a company. According to jurors, the company has to have helped the employee to succeed. Again, in most jury trials, the juror''s initial predisposition is to err in the direction of the employee/plaintiff''s welfare, and even expect the defendant to act as a supportive "parent" as the employer.

Effective strategy: Teach your managers how to manage.

Jurors want to see companies who are responsible for their actions, loyal to their workers, and fair in their adiministration of benefits and rewards. The reasons 45% of managers fail during their first 18 months, and the reasons jurors give for awarding punitive damages, are often the same; poor judgment, absent interpersonal skills, limited emotional intelligence, etc. In other words, it´s not the technical expertise of the manager, or the legal facts of the case, that carry the most weight with the employee/juror; it´s the interpersonal skills.

In particular, teach your managers the principles of progressive discipline, i.e., how to identify and communicate with problem employees about their failure to perform, how to monitor the performance improvement period, and how to put the employee in charge of his or her performance improvement. Employees who have regular meetings with clearly mapped out goals and objectives can see a well-delineated road to return to good standing. And, if they fail to pick up performance by the deadline, the documentation built a case for firing and the facts you´ve gathered make a termination conversation easier.

Juror message #4: You´re responsible for everyone who works for you.

In 2002, eighty-six percent (86%) of 44 jurors surveyed in Atlanta believed a company should take responsibility for the conduct of their employees and managers even if they are not aware of it. Furthermore, almost one-third of this same sample indicated a large company can be expected to control the conduct of every individual employed at the company.

Jurors believe senior management knows everything that happens in every plant, dock and shipping station. As one juror recently said during a post-verdict interview, "That is why they have weekly meetings." Jurors believe managers know about discriminatory practices by even low-level bosses and they will hold the company accountable for them.

Effective Strategy: Expand the scope of your harassment/discrimination prevention efforts.

If you aren´t providing all of your employees with harassment/discrimination prevention training, you are doing yourself a disservice. Don´t rely on your managers to be the "gatekeepers" of appropriate workplace behavior; they will resent it and the odds are, they can´t do it.

In addition, don´t limit your compliance training efforts to an overview of relevant employment laws. Frontline personnel, for example, need to understand that jurors take employment cases personally. Jurors also believe that employment cases, unlike others such as patent and antitrust cases, are about things in which they consider themselves to have expertise: work, bosses, fairness, and unfairness. In addition, as in any case, jury service provides an opportunity for powerless individuals to vicariously (indirectly) experience giving away money and "making a difference."

More specific to employment lawsuits, frontline personnel need to understand that jurors generally hold employers to very high standards, such as:

They also need to understand the potential ramifications of poor judgment. Sometimes lawsuits are damaging because the manager made an error in judgment that angered the jury. For example, did the company send the termination notice in a fax that went to a public fax machine, when the employee did not even know he/she was going to be fired? Sounds unlikely, except that I´ve heard it more than once. There are many mistakes at this level that cost companies a great deal when a lawsuit is filed.

Juror Message #5: Don´t make us mad.

Professors E. Allan Lind of Duke University''s Fuqua School of Business and Jerald Greenberg of Ohio State University''s Fisher College of Business canvassed 996 people at Ohio unemployment offices about how they were treated when they lost their jobs. The goal: to see what inclined them to sue.

Lind and Greenberg''s findings: Dismiss someone brusquely or humiliate them publicly, and you stand a greater shot of being slapped with a suit. Ex-employees filed actions 19% of the time against companies they felt had lied to them or dismissed them in an undignified way -- and 71% considered filing a claim. In contrast, less than 1% filed suits against companies that they felt were honest and decent about the process, and less than 3% considered legal action against such companies, even if they were upset about the dismissal. In fact, treatment at termination was a bigger motivator of legal action than any other factor, including expectation of a big payoff.

Effective Strategy: Teach Your Managers How to Fire.

A common perception seems to be that firing indicates organizational and managerial failure and is therefore too sensitive to discuss. But termination is as much a part of management as recruiting, hiring and retention, and executives need to learn the dos and don''ts.

All managers need training in how to carry out terminations in a discreet, consistent, and mature fashion to avoid charges of defamation and/or discrimination. This means, for example, taking all precautions not to embarrass terminated workers in front of coworkers. It also means being sensitive to timing, i.e., avoiding terminations before vacations, during company Christmas parties, or in the presence of a large group of colleagues. It also involves practicing and rehearsing termination meetings in advance so the conversation can be kept on track.

The Bottom Line
One of the most valuable (and, alas, unappreciated) aspects of HR´s job is to help senior management understand the values of the American workforce. More often than not, an employer´s conduct will be judged by a group of employees who sit on the jury. Unless management remembers how employees look at issues and feel about things, they´ll lose touch with the decision-makers, the very people who will decide whether management made the right decision.

This is particularly true in wrongful termination claims. Messy, public and humiliating firings are fodder for hungry plaintiffs´ attorneys. Being fired under humiliating or unfair circumstances is generally devastating to an individual and often brings out vindictive tendencies, which increase the chances that he or she will file a lawsuit to regain a sense of self-respect.

Training to create understanding about the standards by which the company''s behavior will be judged by potential jurors can help managers and human resource personnel to make appropriate decisions that won''t anger jurors. Training about legal issues and procedures is a natural adjunct to these types of training. Interpersonal skills training for frontline personnel is also necessary to ensure that frontline personnel make effective decisions about how to handle tough situations. In defending his tactful letter declaring war on the Japan, Winston Churchill said, "If you have to kill a man, it cost nothing to be polite." It today´s litigious prone environment, it can even save you money.

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