Civil Justice Memo
No. 32 May 1997
Books to sue by: An Employment-Law Self-Help Shelf
by Walter K. Olson
Furious at your high-handed boss? A generation ago you might have called a union organizer, but now you’re likelier to dial 1-800-LAWSUIT. From Mitsubishi to Texaco to the guy down the hall who put in an age-bias claim after getting downsized, lawyers and threats to sue have been fast supplanting unions and threats to strike as the prime movers of workplace conflict in this country.
The shift is reflected at the bookstore, where for every volume on collective bargaining you can find a half dozen aimed at disgruntled individual workers with titles like Your Rights in the Workplace by Marcia Stewart and Barbara Kate Repa (Nolo Press, 1996), The Employee Strikes Back! by Brian Zevnik and John Rapoport (Macmillan, 1994), and Can They Do That? A Guide to Your Rights on the Job by Michael A. Zigarelli (Lexington, 1994).
I read a sackful of these self-help volumes in the course of researching a book on the new employment law and how it’s transforming the American workplace. Most were reasonably well-written and accurate, if also somewhat single-minded in nurturing among readers a bristly assertiveness about their rights.
But they also made clear, sometimes with inadvertent humor, that the influx of lawyering into the nation’s offices and plants is making America a more contentious place in which to go about our daily work, which spells bad news for employers and quite possibly for the rest of us as well.
Attorney E. Richard Larson minces no words in his book’s title: Sue Your Boss (Farrar, Straus & Giroux, 1981). Larson tells workers who’ve been fired, passed over for promotion, or otherwise aggrieved that newly enacted laws are “very much in your favor” and just “waiting to be used”. “Vast sums” can be on the table, he adds, just in case any readers have been dozing off. “Money —lots of it—has been changing hands.”
How to get some? To begin with, says Larson, you “always should assert your rights under as many of the laws as are available.” Each separate claim gives the employer something else to sweat over and pay its lawyers for, and what with this country’s lack of a loser-pays rule there’s no penalty if you’re wrong on one (or for that matter all) of them.
If you fall into more than one protected-group category — race, sex, age — Larson advises throwing in a claim for each, whether or not you’ve seen actual evidence of bias: “there is no reason to give your employer the benefit of any doubt. Instead, assume the worst.”
Most of these martial-arts-meets-the-human-resources-department volumes broadly resemble each other in format. Their drawback as a publishing proposition is that they date so quickly, falling out of print (like Larson’s), or requiring updated editions as the law relentlessly expands through such enactments as the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Family and Medical Leave Act, and so forth. Maybe at some point trade publishers will emulate the professional law-book houses which address this problem by publishing in looseleaf format or with kangaroo-like “pocket parts” in back for new developments.
As the manuals make clear, the law in practice is not the law as it may look on the page. Academic writers on sexual harassment split hairs about the difference between consulting a “reasonable woman” and a “reasonable person” in deciding what jokes or comments are permissible in the workplace. Ellen Bravo and Ellen Cassedy in the 9 to 5 Guide to Combating Sexual Harassment (Wiley, 1992) are blunter and more practical. “Who decides what behavior is offensive in the workplace?” they ask. “The recipient does.” They advise potential offendees to “trust your instincts” about what constitutes harassment.
Remember A Pencil
Thorough if not obsessive documentation is a common theme. One author suggests starting a file every time you take a new job and saving in it every scrap of paper the company ever gives you. “The one with the biggest pile of papers wins,” writes Lewin G. Joel III in Every Employee’s Guide to the Law (Pantheon, 1993). What if co-workers make, say, “wisecracks about your age”? “Don’t wait until you get home from work. As soon as you are alone and have a chance to write them down, do it. Go to the rest room if you have to. Remember to bring a pencil.” Take notes on supervisors’ remarks “even at a chance meeting at a ballgame or nightclub”.
If relations with your boss weren’t tense already, they may get that way before long. Some authors propose that you insist on a written job description and formal performance reviews even if your company doesn’t normally follow either practice, and demand at frequent intervals to inspect the contents of your personnel file. “If you were made uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them — or at least make copies,” write William Petrocelli and Barbara Kate Repa in Sexual Harassment on the Job (Nolo Press, 1992).
Bravo and Cassedy suggest objecting to offensive goings-on in “any tone that feels right to you”. (Sample wording: “If you touch me/talk to me that way one more time, I’ll report you so fast you won’t know what hit you.”).
Nearly all the manuals are written by practicing employment lawyers, and after a while it becomes clear that many of them have a product to sell. “Talk to an attorney early” advises Darien McWhirter in Your Rights at Work (Wiley, 1989) “...Many employees could avoid throwing their cases away if they would talk to an attorney before doing something stupid, like resigning or admitting guilt.” (Admit guilt? What a dumb move!). Every Employee’s Guide to the Law, one of the livelier volumes and one of the franker in boosting litigation, tells of “a jury award out there with your name on it.”
The assert-your-rights manuals are rather skimpy, however, on warning readers of the costs of a decision to get into a fight with their employers. A leading study of litigation by university professors found most who sued suffered lasting harm to “their finances; their relationships with family, friends, and colleagues; their attitudes toward lawyers and the legal process in general; and most of all their careers.”
Yes, there are often tempting short-term settlements to be had, shared with one’s lawyer; but they may come at a future price part of which is paid when other employers think twice about an applicant who’s shown a willingness to sue.
Then there’s the lawsuit itself, which participants often compare to an especially nasty divorce. To see this side of the process one does well to turn to real-life accounts. One of the most absorbing comes in Nan Robertson’s history of women at the New York Times, The Girls in the Balcony (Random House, 1992). The paper was targeted by an early landmark sex-bias case for paying less to female than to male employees. Robertson strongly sympathizes with the lawsuit’s aims, but recounts its events with palpable ambivalence.
Waging a lawsuit against one’s employer is a “long, slow, painful, difficult, and ego-destroying process”, said attorney Harriet Rabb, who represented the women employees. Grueling depositions, unmerciful invasions of both sides’ privacy, and staggering expenses helped turn the atmosphere at the paper “poisonous.”
The thought of going to trial “scared the socks off” both Rabb and Times lawyer Kathy Darrow: “We knew that people were going to get up on that stand and say terrible things about each other in public,” said Darrow. “....Even taking the depositions, people cried, people were devastated, and there was nobody there but the lawyers to hear them.”
If it were up to me, I’d tuck a story like that into the back of all the enthusiastic how-to-sue manuals, where it would make a much-needed “pocket part.”
Another version of this article appeared in the Baltimore Sun on February 16, 1997.