Ed: this excerpt from Law.com makes a practical point on dealing with disability complaints outside the court room.
Now, let’s go cognitive. When a corporate counsel receives an EEOC (Equal Employment Opportunity Commission) charge or a demand letter from an employee’s lawyer, he should not go into defensive mode or circle the wagons. I know, it is cognitively wired into humans: Attack me, I attack you. That was a good response 20,000 years ago on the plains of the Serengeti, but it’s a useless and often counterproductive one in the corporate confines of a steel-and-glass box. So, general counsel need to turn the switch in their brains to the off position and listen to the concern at hand — without preconceptions, without argument, without defensiveness.
An EEOC charge or demand letter might alert the company to something it should have done but did not. Hey, not every manager is an angel. The EEOC charging party claims she did not get a reasonable accommodation for her disability when she applied? OK, she should come on down, and the company will give her one — not as part of a settlement but because it is the right thing to do.
When an employee claims racial bias infected a promotion decision, perform an audit. But remember that an audit is not a re-creation of the decision-making process but rather a sampling of its correctness and accuracy. If a manager made a mistake, fix it.
Or, let’s say the company gets into litigation. As it progresses, it looks bad: not just because the witnesses are poor or the documents harmful but because an unlawful or suspect decision was made. Do the right thing. Unlike my favorite ketchup, the right thing comes in more than 57 varieties. If a manager made a suspect termination, offer the plaintiff unconditional reinstatement; that means he can come back to work and still continue his suit.
But, these things are hard to do. Why? In their recent book, “Sway: The Irresistible Pull of Irrational Behavior,” cognitive theorists Ori Brafman and Rom Brafman reveal why. Humans are loss-averse. We will continue a losing course of action, hoping against hope that the tide will turn. And we are equally commitment-embracing, strongly preferring to act consistently with our prior decisions, no matter what reality tells us. This is a dangerous combination but an all-too-human one.
Corporate counsel can easily think or hear from the CEO, “We’ve invested a lot of money in making these employment decisions. If we change course, it will look bad.” The Brafmans suggest, if that’s the case, then ask a question: “If I were just arriving on the scene, and were given the choice to either jump into this project as it stands now or pass on it, would I choose to jump in?” In other words, take a fresh look at it and decide whether it makes sense to stay the course or to cut your losses.
I’ll leave you with two thoughts. The first comes from George Bernard Shaw, who said, “Every truth started out as a heresy.” Twombly is a great example. A lawyer decided that 12(b)(6) law needed to be changed — that the old standard was too rusted-out to do any good — and fought to change it. GCs should not be afraid to assert new ideas.
The second comes from former U.S. Supreme Court Justice Felix Frankfurter, who decided a case one way and then, a number of years later, did a 180 and decided it entirely differently. When asked to explain himself, he said something I’ve never forgotten: “Wisdom too often never comes and so one ought not to reject it merely because it comes late.” Good advice all around.
Thinking about Shaw and Frankfurter — now that’s a pastime.
Michael P. Maslanka is the managing partner of Ford & Harrison in Dallas. His e-mail address is mmaslanka@fordharrison.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the Texas Employment Law Letter.
Leave a Reply