Here’s a tip for employers that make snap decisions and then quickly reconsider: Don’t hesitate to fix the problem; that could convince a court to toss out a lawsuit.
Recent case: Tameka Simmons, who is black, worked as an attorney for a large New York law firm until she was discharged for “economic reasons.” She suspected race discrimination—and said so.
Then, right before she was preparing to sue, she got a phone call from a postal inspector asking her about a case she had worked on while with the law firm. To ensure that she did not violate attorney-client privilege, Simmons immediately contacted her old law firm and demanded that it provide her with independent counsel. The firm refused, telling her instead that she could speak with one of its attorneys.
Simmons then added retaliation to the lawsuit she was about to file, arguing that withholding access to a free independent attorney was retaliation for complaining about racial discrimination.
The day after Simmons called, the firm agreed to hire an independent attorney for her.
She sued anyway, alleging she had suffered mental anguish in the hours before the firm reversed its decision.
The court threw out her claim, reasoning that her damages, if any, were minimal. It also noted that the law firm had no real obligation to provide an attorney, since it had never before provided legal counsel for former employees. That meant it couldn’t have singled out Simmons because she was black or for complaining about discrimination. (Simmons v. Akin Gump, No. 10-CV-8990, SD NY, 2011)
Final note: The court also observed that Simmons couldn’t have suffered much mental anguish in just 24 hours.
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