In Defense of Big Business Defense

I have many friends who plan on working in the labor and employment field of law, but want to do so on behalf of the employees, rather than on behalf of the Big Bad Businesses (tongue in cheek, ya’ll). And, just for the record, I wanted to point this out… because, really, this kind of stuff pops up all over the place, and if it’s fair for the employees/applicants to fish for lawsuit fodder, it’s only fair that the business have some litigation counsel ready to put the kibosh to that plan.

Here, an article from Lou Michels:

Behind the Curtain

An article in the Wall Street Journal on October 4, 2005, provides a revealing, and almost certainly inadvertent, view of the thought process operating at the senior levels of the EEOC. In the Managing Your Career column, Joann Lublin writes about various strategies for women looking for new jobs after reporting sexual harassment by their coworkers. Lublin notes that “[i]t’s usually a good idea to avoid detailed discussions with prospective employers about your mistreatment.” But she then goes on to note that sometimes candor about a situation might make sense if you are looking for work within the same industry. Here’s where it gets interesting. Lublin quotes Elizabeth Grossman, Acting Regional Attorney at the EEOC in New York, giving suggestions on how to set up a potential employer for a retaliation claim. “Hiring managers must know about your ‘protected activity’ before you can prove a retaliatory rejection, explains Elizabeth Grossman … ‘if you tell them, you [could] have a slam-dunk case.’” In other words, at some point in your interview blurt out that you filed a sexual harassment claim, and you can insulate yourself against not being selected, because the potential employer is now “inoculated” with knowledge of your protected activity. If you’re not hired, file an EEOC charge and sue.

While it’s refreshing to have my paranoia reinforced occasionally, what the EEOC attorney appears to be proposing is simply outrageous. The idea that one could effectively insure either a positive hiring outcome or a successful retaliation case by poisoning the well with a prospective employer with planned references to charges filed, disabilities, age or FMLA issues reeks of gamesmanship, and is precisely the kind of thing that causes judges to look at these cases with a jaundiced eye.

Let’s hope this remark was taken out of context. Nevertheless, it’s another example of conduct in this area by people looking for a litigation claim rather than a job.

Labels: anecdotes and opinions, lawyer stuff, think-abouts, work