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by Jathan Janove, Esq.

If you’ve ever been caught up in an employment lawsuit, chances are you couldn’t wait for it to be over. Pass the kidney stone and forget it! Yet every case presents a valuable opportunity to prevent future problems and improve HR effectiveness by conducting an “autopsy” of the claim.

Here’s an example of a recent post-mortem I hosted with a client (with names changed to protect the “guilty”).

The case:
Following her discharge, “Sandra” sued my client for sex discrimination and retaliation. Nearly two years later, both sides settled the case.  The amount of time and money spent caught the CEO’s attention. He called a post-mortem meeting of all managers. I played coroner.

In “dissecting” the litigation, I described evidence of Sandra’s extremely low productivity, her rude way of speaking to co-workers and customers, and her use of work time to further her personal side business. Firing such an employee should have been a no-brainer, right?

However, Sandra had evidentiary arrows in her quiver, too:

  • Lack of progressive discipline or documentation.
  • Inconsistency. Rather than confront her, company managers (who were male) took a hands-off approach because they were worried about a gender discrimination claim, especially after Sandra raised the issue in her own inimitably crass fashion.
  • Her boss fired her only after two employees quit and a key customer left due to Sandra’s behavior.
  • Although Sandra never complained of sex bias to HR, she said her boss had warned her that speaking to the corporate office “wouldn’t be good for your future.”

Another important autopsy point: Soon after Sandra filed her claim, she offered to drop it in exchange for three months’ severance. However, her manager insisted her claims were baseless and, thus, ignored her offer. (When the claim was ultimately settled two years later, the total cost—settlement plus attorneys’ fees—topped $200,000, the equivalent of more than two years’ worth of severance.)

Autopsy lessons. After I put down my “scalpel,” the CEO addressed managers by pointing at the HR director and saying, “Does anyone here not know who this person is or why she’s in this organization? If so, you’d better learn fast.”

The CEO added: “Do you know how many products we need to sell to offset a $200,000 loss? This tendency to duck problems because they might get messy must end now. We have resources to help you. Use them!” 

The HR director said the lawsuit post-mortem meeting greatly increased management cooperation on personnel issues. Training and coaching initiatives were supported. HR got looped in early and often, and problems got nipped in the bud.

Among the positive results in the years that followed: no lawsuits and no agency claims of any magnitude.

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Author: Jathan Janove is a management trainer, employment attorney and author of The Star Profile: A Management Tool to Unleash Employee Potential and Managing To Stay Out Of Court: How to Avoid the 8 Deadly Sins of Mismanagement. Contact him at jathan.janove@ogletreedeakins.com.

 

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