LESSONS LEARNED FROM MOCK TRIAL

Those who attended the LCHRA mock trial on July 18 acted as jurors to decide what really happened in a case where a nurse sued her physician employer for pregnancy discrimination, retaliation, and constructive discharge.  The facts were compelling and the jurors took great care in their deliberations, working to decide which side was more believable. 

As dramatic as jury trials can be, most employers would prefer to avoid litigation in the first place.  In that regard, there are at least three lessons to be learned from the mock trial presentation.  First, when assigning employees to light duty positions, take appropriate steps to ensure that the working conditions are not so unpleasant that they appear retaliatory.  In the mock trial, the employee was placed in a light duty position where she was confined to a small space and prohibited from speaking with other employees while performing relatively tedious job tasks.  Her hours were also reduced by half, thereby adversely affecting her salary.  Alone any one of those actions might not constitute discrimination, retaliation or constructive discharge, but taken together, the employee felt the reassignment was punitive.  Employers are better off placing employees in meaningful light duty positions with pleasant working conditions, if at all possible.

Second, employee handbooks and company culture should promote an open-door environment, where employees feel comfortable raising workplace issues with any appropriate member of management.  In the mock trial, the employee was unable to complain about the office manager’s management style because the physician made it clear that all complaints were to be handled by the office manager.  A better practice is to allow employees to circumvent the chain of command and to empower managers and human resource professionals to attempt to resolve employee complaints.  In fact, recent court cases have given an affirmative defense in certain harassment claims to employers who implement such open door policies.  

Third, train supervisors to appropriately document employee performance problems and treat employees with respect.  In the mock trial, the office manager took detailed notes on everything the employees did, from the style of their hair to how many minutes they spent in the bathroom each day.  Although the employer treated all of its employees with the same hard-nosed scrutiny, such micromanagement can breed resentment among employees, despite a lack of discriminatory intent. 

Accordingly, if you have supervisors who are known for being difficult to work with, beware.  It is better to help supervisors improve poor managerial skills than to try to defend a harassment claim based on the fact that the perpetrator was an “Equal Opportunity Jerk,” a defense that is rarely successful in a jury trial.

As the mock trial demonstrated, aggressive management tactics can significantly impact morale and cause employees to impute unlawful motives on management’s actions.  If you believe your business suffers from those risks, the employment advisors at Hershner Hunter, LLP can help. Andrew G. Lewis and Amanda M. Walkup.

This memorandum provides general information and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. If you have specific legal questions, you are urged to consult with a lawyer.