The good news: Some basic training and monitoring can prepare you to ward off the slings and arrows of an enemy attorney. Here are 10 weak spots that opposing attorneys will exploit to discredit you. Use them as a checklist for preventing a credibility attack.
1. Being unfamiliar with our policies and procedures. A jury will view your lack of knowledge as uncaring and lax, at best: purposeful and negligent, at worst. After all, how can you enforce policies that you don't even know yourself?
2. Sloppy documentation. Most discrimination cases aren't won with "smoking gun" evidence. They're proven circumstantially, often through documents or statements made before the lawsuit is filed. You're smart enough not to admit bias directly, but juries know that a lot of testimony is self-serving. That's why documents, particularly e-mail, can help the employee show discriminatory intent.
3. Dishonest appraisals.are one of our most important forms of documentation, yet managers often inflate the ratings. When you later try to blame for an adverse employment action, those dishonest appraisals open up a land mine of credibility concerns.
4. Inconsistent statements. When responding to charges filed with the EEOC or state agencies, you often have to submit position statements or execute affidavits. You can bet the employee's attorney will review those statements, particularly affidavits, and introduce them at trial, especially if your story has changed. Keep it consistent.
5. Not taking complaints seriously. Turning a blind eye to any complaints of unfairness or perceived illegal actions will kill our credibility and yours. Comments like "I'm not a baby-sitter" or "Boys will be boys" will jeopardize everything.
6. Poor interviewing techniques. It may be easy to answer the question, "Why did you hire the person you did?" But managers often run into trouble when they have to answer, "Why did you reject certain other candidates?" That's because rejection decisions typically aren't well documented, and you may not recall the reasons later on. This "selective amnesia" will come off as a coverup for discrimination.
7. Changing rationales over time. Whenever a plaintiff can show that our reasons for making an adverse employment decision change midstream, our credibility is shot. Smart attorneys will argue, successfully, that our "reasons" are just pretext for discrimination.
8. Lack of knowledge as a well-rounded leader. Would you trust a brain surgeon who didn't stay updated on recent developments in the field? Well, juries will expect, and the plaintiff's lawyer will encourage them to expect, that you're staying abreast of developments in employment law.
9. Overdocumenting. You hear the mantra, "document, document, document." But you can overdocument, especially when it all occurs right before a firing.
10. Failing to work with an employee before firing. Remember, termination is the "capital punishment" of the employment world. Juries are likely to sympathize with employees who have lost their livelihood and self-esteem. A manager who fires without first trying to improve performance will appear insensitive and mean-spirited. Conversely, the manager who really tries to improve things before taking drastic action will stand a much better chance of winning in court.
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