What law school ought to be.



Reducing the litigious climate in organizations

By Laura Gilbert

Conflict in the workplace is not a new phenomenon. However, the components of workplace conflict have become increasingly complex in recent years. Drastic changes in employment laws have combined with extensive changes in how we live and work. Basic questions no longer have simple answers. "What can I expect from my employer?" "How much of my sense of self and happiness should come from my work?" "Is there anything I can do to ensure my position and the progress of my career in this company? If so, what?" The result has been a growing sense of uneasiness among workers and an accompanying need to claim one's legal rights when conflicts arise.

Misperceptions about employment laws, employee rights or entitlements often fuel this fire. What constitutes gender discrimination? When does collegial behavior become sexual harassment? When does age become a rightfully litigious factor in an employment action? These are among a long list of commonly mis-answered questions.

Society's heightened awareness and acceptance of lawsuits as an expected and potentially lucrative option has resulted in employees filing legal claims as a knee-jerk reaction to negative workplace

situations. When a dispute arises, an employee often simply turns to the list of legally protected rights and searches for a basis to prove his or her innocence and to be compensated accordingly. The complexity of the situation can increase exponentially if the individual is facing personal turmoil regarding a related protected area (i.e., growing older, feeling a gender bias or struggling personally with race-related issues).

Changes in society over the last three decades have resulted in the availability of fewer support structures to assist individuals with day-to-day life challenges, such as building and maintaining healthy relationships, coping with issues of personal identity and purpose, or sorting through equality issues at home and work. Individuals often feel isolated and alone when conflicts arise. Traditional places for support, such as families, community affiliations, and religious communities have become less central (or available) to the average citizen’s life. Thus, unresolved personal conflicts often get unintentionally attached to workplace issues, adding to the challenge for resolution of the complaint.

Consequently, individuals seek out workplaces that offer some of the missing elements in their lives: a sense of community, place, meaning and purpose with qualities of trustworthiness, fairness, consistency in leadership action, and respect for employees’ time and talents. Today’s employees want to contribute and belong (although not necessarily in the same way or to the same groups as in the past). When these qualities are present in a workplace, a sense of safety, confidence, hope and trust is created both for the individuals and the organization.

When the search for these qualities appears hopeless, employees may turn to unconscious myth-making in order to create a truth for themselves or among their peers. Given that these myths are often created informally around the water cooler or in the lunchroom, they can often remain unknown to management until they have developed into a full-fledged complaint, replete with alleged evidence.

The role of emotion in potentially litigious conflict

Focus on the work issue. Litigation often results from negative feelings and emotions in response to another’s actions or behavior rather than to clear-cut violations of the law. A critical step toward resolution of workplace conf1icts is to clarify and explore the presenting issue (the complaint brought forward as the issue). In particular, it is helpful when possible to establish the tangible workplace issues apart from accompanying emotions and non-workplace issues. Generally all discussion of non-employment issues should be directed to the employee assistance organization or mental health providers. By focusing on the work issue, the appropriate issue is addressed for the work setting, and no employee privacy rights are violated.

Ask clarifying questions. This is not to suggest that an employee’s emotions related to a tangible workplace issue should be ignored. To do so could easily create the perception of a cold or even hostile management style. Many times, venting one’s emotions and feeling understood allow the individual to focus on acceptable options for resolution. Once the employee has had a few minutes to express him/herself, clarifying questions can be asked.

"If I understand correctly, Molly, the lateness of your performance review has resulted in a situation where you feel that your increase was unfairly determined and you missed out on a promotional opportunity. You believe that yours was the only review in your department to be done six months late and thus are concerned about fairness issues in the department. I can certainly understand how you could feel (angry, hurt, upset) about this situation. Let’s talk about where we can begin to address this situation. Tell me your biggest concern at this point. . . ."

If the employee also lists a number of personal issues a response could be, "Gee, Bill. You sure have a lot going on in your life. Let’s focus on this work issue because that is the one we can address. Now, let me make sure I understand your concern. . . ."

The role of loss

During the last two decades, society as a whole has experienced loss in a manner unprecedented since the industrial revolution. Roles of men and women have changed dramatically. Immense changes have and continue to permeate our school systems in terms of subjects, expectations and environment. Technology has changed everything from medical care to entertainment. Even the definitions of success, happiness, spirituality, healthy lifestyle and family have changed. While most would agree these changes indicate societal progress, few recognize the significant element of loss that continues to influence our lives.

Is loss influencing workplace behavior? Many non-workplace issues are centered on emotionally intense questions of belonging, purpose and meaning. The experience of loss and displacement created by a personal situation (i.e., divorce, death, and family member job loss) can exponentially increase the emotions at attached to changes at work (i.e., change of supervisor, loss of promotion, physical departmental move).

In addition, the changes in the workplace of the ‘80s and ‘90s have created a tremendous sense of loss within the workforce as a whole. Organizations are filled with employees at various stages of the loss cycle: denial, anger, sorrow/despair/depression, bargaining, and acceptance. Layoffs, restructuring, plant closures, the move to the knowledge/technology age, the need for lifelong learning, and so forth have left many employees with a deep awareness of the move from company as caretaker to the "brand called you." As employees and organizations work through their individual and collective experiences of loss, it may be helpful to consider the possible workplace effects.

Employment law issues arising from loss are often brought forward during the anger stage of loss. Identifying and addressing the specific workplace cause of the anger can help separate and prioritize the various elements of the concern. Individuals in the depression stage are simply too overwhelmed and tired to sort issues and take action. When they do, it is common to hear statements such as, "My spouse/best friend really thought I should make this complaint." Ironically, it is not uncommon for these supporters to be in their own anger stage related to similar work issues or the temporary emotional loss of their partner/friend.

Acknowledge strong emotions. It is also critical to avoid the black hole of trying to correct or argue with someone’s feelings. Strong emotions may hit hot buttons both parties or may simply cloud individual’s presentation of the conflict thus causing both parties to head down wrong path, albeit with the belief that t are addressing ‘the’ issue. In the face of strong emotion, the most appropriate and legally safe actions are attentive listening, note taking and acknowledgment of employee’s concern.

The role of motivator

In order to prevent further recurrence the same or similar issues it is essential to identify, as best as possible, the "motivator" for the complaint. The ‘last straw’ is generally an event that ties into a strong emotion that affects the safety, security or stability of one’s situation. In describing the ‘last straw,’ the employee often reveals broader emotions that caused him or her to act at this time. The employee also may provide clues concerning the motivator through recurring descriptions of the conflict. "This isn’t fair." "I’m so angry." "This affects my whole life." "I don’t know what to do."

By listening closely to these comments, the astute human resource professional can discern patterns with this individual or within the workplace that can then be addressed by broader programs intended to address issues such as fairness or feelings of confusion within the organization. While it is essential to avoid taking on a role as therapist, it is possible to facilitate a discussion that will separate the presenting emotions from the actionable components of the complaint.

There is great corporate and personal value in exploring ways to resolve potential employment lawsuits outside of court. Often when an individual is seeking litigious retaliation over something as seemingly benign as a late performance review, there are additional underlying issues fueling the fire. Once the individual hires an attorney and begins proceedings, the human resource professional is no longer free to explore possible underlying issues for fear of being charged with harassment, threatening or intimidating behavior or trying to influence the employee. Yet, by identifying and addressing the issues that can be explored (i.e., the late review), the volatility and liability of the situation may be reduced.

Categorize the complaint. In the best of situations, a potentially litigious relationship can be turned into a partnership effort between the employer and employee. In identifying the critical elements of a complaint, it may be useful to initially view the complaint within one of three broad categories. These are red herring (the issue is not the issue), borderline (includes legitimate and misguided elements) and "real" cases (including prima-facie cases). From this standpoint, one can quickly assess which are the key elements to be addressed.

I. Red Herring Cases

Red herring cases occur when work-related situations are subconsciously used as a means of venting emotions related to more complex or volatile issues (personal or work-related.) The work situation will only be tangentially related to the underlying issue. Red herring complaints are often baffling to the HR professional, yet require immediate and careful attention. Cases that seem to lead nowhere, are heavily laden with emotion, go in circles or appear to increase in intensity during attempts for understanding and resolution are often red herring cases. The following real-life example demonstrates various ways that red-herring cases emerge and how they can be resolved. In fact, all the following examples are based on situations I have experienced as a Human Resource Director.

Example: time-off bank equals sex discrimination. Combining vacation and sick time into a time-off bank was seen by a group of female employees (who happened to all have young children) as proof of discrimination against women. Their logic was that, before the time-off bank system was initiated, mothers used their earned sick time to care for sick children thus saving vacation time for vacation. In the new system, fathers (who they asserted do not care for sick children) and men without children will have more vacation than women since the women now need to use time from their time-off bank to care for sick children. The claim: gender discrimination. The red herring: the time-off bank is the culprit.

Through a discovery process, it was revealed that this particular group of women was experiencing many of the common work-family balance challenges, particularly a crunch of time, money, freedom and energy. A group of young, single men in their division had been gloating about the European trips they could take now that, in essence, they had more vacation time under the new system (since the assumed they would not be using any days for personal concerns or illness.) The women, at their wit’s end at home and work, interpreted the young men’ gloating as proof that they (the men) had indeed been given something others had not. This and their personal stress served more than enough motivation to pursue possible litigation.

A meeting was held with all interested staff to discuss concerns about the new system. Justification and calculations for the new policy were explained. Feedback resulted in the offering of several sessions effectively balancing work and home. Case closed.

Avoid distraction from the real issue. The greatest danger with red herring cases is getting stuck in immense arguments over something that is no more than a distraction from the real problem, in this case the time-off policy. Red herrings distract the parties from the real issue and in doing so distract them from a solution. Chasing a red herring is a lose/lose situation, no matter how much energy and sincerity is put forth. Had the issue of gender discrimination been allowed to take center stage in the previous example, no progress could have been made. Equal time off for all employees is simply not discriminatory. Yet the feelings of the differential treatment were real with these women – simply misplaced on the new policy rather than on their new life choices (family and motherhood). An intense denial of discriminatory practices from the company could have been seen as disinterest in providing an equal opportunity workplace. As it was, the red herring was avoided and a solution found.

2. Borderline Cases

Borderline cases differ from red herring cases in three distinct ways. First, borderline cases have some substantive basis for possible legal action. Red herring cases, by definition, use actionable words (discrimination, harassment) to describe decisions or behavior (reassigned parking spots) having virtually nothing to do with the actionable claim. Second, borderline cases often involve complex facts. Red herring cases are motivated primarily by feelings, which may have been redirected at another issue. Third, borderline cases that go to court may require an extensive discovery process and they also may involve an entire subgroup within an organization. Red herring cases are more likely to be settled out of court simply because the claim is so blatantly disconnected from the alleged action.

Borderline cases are perhaps the most common type of employee-initiated legal complaint today. Their complex mixture of fact, emotion and misunderstanding make them extremely costly in time, energy and money. The stress produced throughout the organization is immeasurable, resulting in lower productivity, increased illness and, in some situations, unwanted resignations. The employee often has misperceptions about employment law and may truly believe that the evidence establishes a wrongful termination, unlawful harassment, prohibited discrimination, or a violation of ADA or FMLA policies.

Borderline cases are ideal candidates for alternative dispute resolution. Once an employee threatens or initiates action, the HR department is severely limited in what can be said or offered in the way of help. The professional and serious nature of mediation or ADR is often enough for the employee to feel that the complaint is being taken seriously. The fact that the employer is obviously concerned combined with the opportunity to appear before a "neutral" allows for the possibility of an out-of-court solution. The following example demonstrates the complexity and challenge of borderline cases that become full-fledged claims.

Example: parental leave discrimination. A substantial layoff occurred that affected individuals throughout the organization, including one complete department whose function was to be outsourced. One employee in this department, Alyssa, was at the end of a 12-week parental leave. Her skills were not transferable to any other function in the company. Although the company had a legal right to terminate Alyssa as part of this layoff, given that her position would have been eliminated had she not been on leave, Alyssa didn’t see it that way.

For a number of months prior to taking leave, frustration and distrust had been building with one supervisor and then another. Two consecutive annual performance reviews by two different supervisors were more than two months late. In fact, the reason the reviews were late was that the supervisors were trying to avoid giving a very poor review or terminating her for poor performance. Both supervisors’ hope was that Alyssa’s frustration and her dislike of the organization would eventually cause her to leave on her own.

Once she became pregnant, her current supervisor encouraged discussions about the possibility of staying home with the baby. Although she initiated each conversation, the strength of her supervisor’s encouragement, coupled with his lack of communication about her work, began to sound paternalistic to Alyssa, and she resented it. Alyssa could tell that her manager was not being honest with her, which fueled her anger and suspicion.

When the layoff, occurred, Alyssa took it as her chance to do significant damage to the company’s reputation while collecting a large settlement. The day after receiving notice of the layoffs, she filed a civil suit and a complaint with the Department of Human Rights alleging pregnancy discrimination, wrongful termination, age discrimination, gender discrimination and FMLA violation. Although not directly actionable, the mismanagement by the supervisors was real; however, none of the actionable claims was sustainable. Alyssa was left with feelings of violation and victimization.

In borderline cases, behaviors or actions occur that look and feel to the employee very much like cases one might see on the news. Yet one or more key elements may be missing that would turn them into a solid case. In Alyssa’s situation, she knew that her job was protected under the FMLA while she was on leave. What she didn’t know was the one exception - a job elimination situation that would have occurred whether or not the employee was on leave at the time of the elimination. The strength of her belief that the company was in violation combined with her anger to set her on a mission to find a legal basis for each and every area in which she felt violated.

An older male temp had replaced her during the first part of her leave and was scheduled to stay for a couple of weeks after the layoff to wrap things up; so she alleged gender and age discrimination because she had been terminated without being given her review. Pregnancy and FMLA discrimination resulted because the supervisor had "tried to persuade" her to not return once she became pregnant (he thought he was being encouraging). FMLA must have been violated because there was not position for her at the end of her leave (although no one else had a position in her department either.) Bits and pieces were accurate enough to encourage her to pursue a large settlement.

Over the next two years the claims were painstakingly eliminated one by one. Each was proven inaccurate. In the end, Alyssa walked away exhausted and discouraged, with only a lawyer’s bill. The company was left with a six-figure attorneys’ fees and a distraught workforce, half of whom had been subjected to repeated questioning by Alyssa’s attorney. This included all women who had been pregnant in the last two years, all management and executive staff, all individuals with whom she had worked during her decade with the company, and all the laid-off staff from her department, including former staff.

Such a monumental effort was required because her claim contained one ‘hot’ potential violation (termination during parental leave.) Had the previous supervisor been honest about her performance two years prior to her leave, it is very likely this claim would not have emerged. Her pent-up anger and frustration about the review and her suspicion on the intent of her supervisor’s comments motivated her to pursue retribution through legal action.

3. Real cases


"Real" cases result from gross or blatant action that is in direct violation of a specific law. This included but is not limited to prima facie cases. The intent of an action need not be negative to result in an actionable claim. The action may be borne of ignorance, willful intent or personal belief systems. Many real cases develop out of a sincere (albeit misguided) intent to take care of one or more employees may be interpreted as paternalistic. While borderline cases are often a mixture of several separate claims, real cases often focus on one area such as gender discrimination and include several concrete examples of the discrimination over time.

In the following situation, the executive’s error will be immediate and glaring to the reader. However, the executive labored over his decision and truly believed it was in the best interests of the employees and their families. He made his best decision, given limited resources, and felt terrible for months when his actions backfired.

Example: sex discrimination in salary increase. A male manager received a salary increase outside the scope of the company’s policy for top performance for that performance year. A female manager in the same unit received no increase, although her performance far exceeded that of the male manager’s. In fact, her performance had been touted by the president as having kept the company afloat during this down year. The boss’s justification was that both were valued employees, but the male had recently remarried and was supporting two families while the female’s husband owned a highly successful local business. Clearly, the male manager needed the money and she, being female, needed kudos and encouragement. The executive was effusive in his kudos but explained to her that there simply was no money in the budget for an increase.

When the female manager heard through the grapevine about the male manager’s increase, she tendered her resignation and informed her boss and the president that she was considering filing a suit. There were numerous other minor offenses that had occurred in the name of paternalism that would support a clear "real" case.

The HR director was immediately called. She worked with the president and executive to draft an apology letter to the female manager, outlining steps that would be taken by the executive to increase his awareness of how his behavior affected others. In addition, she was offered an increase comparable to the male manager’s in consideration of her superb performance. In this case, the executive and female manager were able to work through their hurt, anger and confusion outside of court. The case was never filed and the executive and manager continue to work together successfully today.

Intervene early to avoid litigation. In each case – red herring, borderline, or real – discussions need to be held as soon as possible if a potentially litigious complaint is aired. Many cases can be resolved quickly and positively when plans are developed to address the critical elements of a violation. Detailed documentation of intent, action, employee response, and HR response must be prepared and filed in a confidential location.

If a case reaches court, any positive, sincere activities that the company has taken to resolve the situation are indications that the company is trying to recognize and correct areas of violation or weakness. Demonstration of extensive and ongoing training for all levels of staff regarding employment policies, practices and laws is another plus for the company. Finally, a corporate culture that respects professionalism over ‘being a family’ at work will be less likely to fall into traps of paternalistic behavior that can be easily translated as discriminatory and unfair.

Strategies for the human resource professional

Listen and respond carefully. Within the broad spectrum of corporate environments and individual situations, there are several strategies the HR professional can apply across the board. First, when a potentially litigious situation is conveyed by an employee or manager, take time to really listen. Let the individual know his or her concern is being taken seriously. At the same time, choose definitive responses wisely. Oftentimes, employees will seek agreement from HR with their view of the situation. Remember that everything that is said to the employee can be used in court as evidence of the company’s attitude or promises. Ensure that the employee knows that his or her concern was heard and that some action will be taken toward resolving that concern, but take care to not express personal feelings about the situation.

Seek written clarification of claim. Second, if the concern is unclear, emotionally charged or highly complex, suggest that, after work hours, the employee write out the details of the situation and the specific issues. The employee can also clarify in writing what is sought from HR, the individual manager and the company. This exercise can be both therapeutic for the employee and helpful to the HR professional in understanding the core concern. Clarifying questions can then be asked based on the written document.

If appropriate, recommend the EAP. Third, if the company offers an employee assistance plan, remind the employee of the plan details and its confidentiality. The EAP provider is generally available 7 days a week, 24 hours a day and can help the individual clarify issues and concerns that are outside of the legal and psychological bounds for the HR professional.

Develop an initial immediate action plan. Fourth, at the initial meeting, determine with the employee an immediate plan of action to cover the next 5-10 working days. The immediacy and intensity of action will, of course, be dictated in part by the severity of the complaint and the company’s policies regarding specific complaints. The plan should be put into writing within a day or two, and the HR professional should stay in close touch with the employee as the plan is being implemented.

Document claim and employer response. Finally, the HR professional should document the meeting as soon as possible after the meeting. Elements to include are:

the basic demographics (day, time, employee name, title, manager, department);

the claim or complaint as described including who, what, when, where, how, how often;

the written plan of action including tasks and a timetable for completion with check points;

any evidence presented or past visits regarding the same issue; and

any other information that the HR professional deems valuable toward the full understanding and resolution of this situation.

Strategies for the organization: trust, prevention, and communication.

Establish an environment of trust. To create a non-litigious workplace, strive for an environment where employees feel comfortable bringing forward their concerns for the good of the whole rathern than just for themselves. In this setting, the company is motivated by principle, rather than by fear, to "do the right thing" regarding corporate practices, policies and culture. Doing the right thing can entail a wide variety of actions ranging from updating employment practices to implementing a long-promised program, or even terminating a problem employee.

Often, the ‘right thing’ is an action that requires courage, deliberation and risk. It is frequently based on values of fairness, respect and honesty. When an organization does the right thing because to do so reflects the mission and values of the organization, the organization engenders employee trust and commitment. Taking the same action out of obligation or fear creates a climate of contention and fosters distrust and detachment.

Anticipate concerns and take preventive action. The major challenge to reducing litigation lies in predicting and addressing concerns before they become legal issues. In an environment of trust it becomes easier to identify potential concerns and take preventive action. Preventive action may be as simple as one-on-one counseling of employees or managers on specific concerns, or as complex as reworking policies and procedures to reflect current workforce and societal sensitivities.

For example, whenever an employment-related topic becomes a hot item in the news (FMLA, Americans with Disabilities Act, HMOs, and so forth) the preventive model suggests offering a comparison of the company’s policies with the publicized concern. It can almost be guaranteed that the staff will be making their own comparisons in a timely and trustworthy manner, the employees’ understanding and trust is increased. In the best of situations, employees become independent recruiters to friends working at companies with less desirable practices (or trustworthiness).

Communicate early and often. One of the most powerful preventive action steps toward reducing litigious climate in organizations is through consistent, trustworthy, thorough and ubiquitous communication. This includes everything from newsletters to hallway conversations to the creation of a strategic plan for communicating corporate changes, particularly those that have a broad, sensitive or potentially negative perception.

However, this does not mean that everyone always knows everything. Far from it! Healthy, non-litigious work environments are found where the organization has established boundaries of appropriate communication around what, how, when and to whom information is shared – boundaries that the staff have learned through experience to trust and emulate. Leaders share information about mission, values and bottom line, and act in accordance with their message. Over time, this parallelism between action and words results in an environment that communicates trust, openness and common purpose.

This can be simultaneously the most simple and most difficult form of communication to build within an organization. Its foundation is the consistency between leader message and action in the daily course of doing business. The value of this environment to the financial, legal and productivity health of the organization is immeasurable.


To borrow from the sports arena "the best offense is a good defense." Yet, this defense does not need to become all consuming or fear-driven. Numerous positive models of this metaphor exist in diverse areas of society. For instance, by driving our cars defensively, we never know how much damage and pain is prevented by avoiding the accidents that don’t happen. Preventive health care and pre-school programs are other examples of proactive, preventive practices. Each is based on practical, common sense. Each requires doing the right thing for the right reason (prevention and health) before being required to the right thing for the wrong reason (treating preventable illness or defending preventable litigation).

Conflicts and concerns in today’s workplace emerge from a wide variety of situations and are fueled by diverse motivators: loss, frustration, confusion, misunderstanding, hurt and anger, to name a few. As the world of work and the world of home continue to bend and flex toward new norms and traditions in the 21st century, individuals are likely to seek stability wherever it appears possible in their lives. The misperceived black-and-white nature of employment law will continue to be seen as one possible place to find consistency, fairness and certainty. By providing these qualities to employees through consistent, fair and equally applied policies, practices and, most importantly, leader behavior, much can be achieved toward the creation of a non-litigious climate.

Leaders who offer a work environment built upon these qualities will experience fewer, less volatile, more easily resolved and less costly litigious complaints and situations. These leaders are likely to create productive, enjoyable work environments that will attract talented, creative, desirable, employees. These organizations have the potential to stand as models for the 21st century workplace. These leaders who discover how to effectively create non-litigious work environments in our highly litigious society will truly be the leaders of tomorrow.