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Keep your credibility intact: 12 lessons from the courtroom

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in Discrimination and Harassment,Employment Law,Firing,Hiring,Human Resources,Leaders & Managers,Performance Reviews

To avoid becoming the target of discrimination lawsuits, you need to protect your credibility as a leader and manager. Reason: It's one of the top ways plaintiffs' attorneys will attack your company's defense at trial.

The good news: Some basic training and monitoring can prepare you to ward off the inevitable strike from an employee lawsuit.

Here are what I like to call the "dirty dozen": 12 weak spots that opposing attorneys will exploit to discredit your case. Use them as a checklist for preventing a credibility attack.

1. Being unfamiliar with your own corporate policies and procedures. Policies and procedures are mandatory for a reason. If you or your managers have to admit ignorance, a jury will view it as uncaring and purposeful, not forgetfulness. 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 by managers before the lawsuit is filed. Your company is smart enough not to admit bias directly, but juries know that a lot of testimony will be self-serving. That's why documents, particularly e-mail, can help the employee show discriminatory intent.

3. Dishonest appraisals. Performance reviews are one of your most important forms of documentation, yet managers often inflate the ratings. When a manager later tries to blame poor performance for an adverse employment action, those dishonest appraisals open up a land mine of credibility concerns.

4. Careless statements to government agencies. 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 these 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 in the workplace is a guaranteed credibility buster. 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 the decision maker may not recall the reasons later on. This "selective amnesia" will be characterized as a cover-up for discrimination.

7. Changing rationales over time. Whenever an employer's reasons for making an adverse employment decision change midstream, your credibility is shot. The worker's attorney will argue that your reasons are false and were just excuses ("pretext") for illegal 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? The answer, of course, is no. And juries will expect, and the plaintiff's lawyer will encourage them to expect, that your company's leaders are staying abreast of developments in employment law.

9. Treating the ADA's interactive process as a "one-way street." When considering reasonable accommodations for a disabled worker, too many managers wrongly view the interactive process as a take-it-or-leave-it proposition. It should be a two-way attempt to reach a solution.

10. Overkill on an employee. No one likes a setup job. Most managers hear the mantra, "document, document, document." But you can overdocument, especially when it all occurs right before a firing.

11. 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 the worker's 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 avoiding a lawsuit or winning in court.

12. Being a jerk or having an attitude. Your company can have the best case in the world, but if your top manager comes across badly, your attorney's job of selling the case to the jury will be a lot more difficult.

Bart M. Feinbaum is assistant general counsel for Blue Cross and Blue Shield of Michigan, where he specializes in labor and employment law and writes extensively on legal matters. Interested in having these "Top 12 Ways" presented to your organization? If so, contact preventdiscrimination@ yahoo.com.

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