Tag Archives: lawsuits

Favorite Firings: Stray Discriminatory Comments by Management Complicate Litigation

operation-540597_1280In the Wolters Kluwer Legal & Regulatory newsletter for December 4, 2017, there were three cases reported that dealt with comments by management personnel about employees. In each case, when the employee sued, the employer was unable to get past a motion to dismiss or a motion for summary judgment. Thus, in all three cases, the company faced lengthy litigation that might have been avoided, had managers been more careful with what they said.


In Creese v. District of Columbia, Case No. 16-2440 (RMC), D.C.D.C., Nov. 11, 2017, a corrections officer alleged that he was fired because he was not “manly” enough. His supervisor had made a few comments such as, “[n]o pretty boys needed in jail, so you need to take your earrings out.” The judge found that plaintiff produced enough evidence of impermissible gender stereotyping to survive a motion to dismiss his Title VII and Section 1983 claims.

In Sestak v. Northwestern Memorial Healthcare, Case No. 16-C-6354, N.D. Ill., Nov. 28, 2017, plaintiff Sestak, a labor and delivery nurse, alleged age discrimination after she was discharged for cause. She claimed that an unidentified individual stated that “older nurses would have difficulty” complying with new guidelines because older nurses “are too slow and spend too much time with patients” and that one of her supervisors stated that “older nurses’ often have difficulty understanding when the mother and baby become separate patients.” The court denied the employer’s motion for summary judgment.

In Carter v. A&E Supported Living, Inc., Case No. 16-00574-N, S.D. Ala., Nov. 29, 2017, a nurse was removed from the shift schedule at a group home for intellectually disabled individuals and then sued for pregnancy discrimination. She cited supervisors’ comments to her as evidence that she was removed from her work schedule because of her pregnancy and/or the related “high risk” conditions that the supervisors believed her pregnancy presented. One supervisor stated plaintiff “was at risk to be hurt and [she] didn’t want that for her or her unborn child, for her baby; nor did [she] want to put the people that [the employer] serve at risk…” Plaintiff was required to provide medical documentation that it was safe for her and her unborn child for her to perform the duties of her position. The judge denied the defendant’s motion for summary judgment.


The general legal standard is that stray comments in the workplace do not automatically lead to violations of the discrimination laws. However, they can be evidence of a discriminatory intent. And, of course, the more egregious and frequent the remarks, the more likely courts are to find liability. I’ve written other posts (see here and here and here) about how supervisory comments can get their employers into trouble.

In each of these cases, the employer put forth nondiscriminatory reasons for the actions taken against the employee. But the existence of the supervisors’ comments about pregnancy or gender or age complicated the cases enough to let the judges refuse to grant the defendants’ dispositive motions. The employers may end up winning these cases, but they face lengthy and expensive litigation before they do. Settling the cases may prove to be the better option.

Moreover, in the environment we face today, with heightened sensitivity toward sexual harassment and discriminatory remarks, employers would be well advised to re-emphasize the need to avoid even casual comments about employees’ health, appearance, and any other topics that might touch on a protected status.

It’s a shame that we must be so careful in the workplace and avoid many topics of everyday conversation, but it’s the safest course. As demonstrated by these three cases decided by different courts in recent weeks, supervisory comments continue to present litigation challenges to employers. It is best to involve Human Resources and lawyers if there is any question about what topics are permissible to discuss.

What’s your opinion on the current state of conversation in the workplace?

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Filed under Diversity, Human Resources, Law, Management, Workplace

When Is Mediation NOT a Good Idea?

handshakeI was recently scheduled to mediate a case, but the day before the mediation was to take place, the plaintiff’s attorney called to tell me the case had settled. What? I thought. Without me?

But from the parties’ perspective, this was the best result possible—the case was resolved and they didn’t have to travel to the mediation or pay me. In fact, I suspect that the scheduling of the mediation is what prompted the parties to get serious about settlement. So I believe I had an impact in the case as a mediator, even though I didn’t get paid a dime.

In what situations do parties to a dispute not need a mediator?

As a starting point, let’s look at what mediation is. Mediation is a process in which a neutral person (the mediator) assists the parties to a dispute in reaching their own mutually agreed upon resolution of their differences. The parties—not the mediator, nor the judge or jury in a lawsuit—decide the outcome of the problem.

Given this description of the process, mediation is not necessary when

  • The parties have already agreed on how to settle their dispute

At that point, there is no need for a mediator, although the parties might need an attorney to help them put their agreement into writing. Or if a lawsuit has been filed, they probably need attorneys to get the case dismissed. But a mediator is only of assistance when there is a pending dispute.

  • Both sides are able to discuss the matter rationally and emotion is not an issue

Of course, no one is ever completely rational and unemotional when a significant dispute is pending. But in many business disputes, the two parties (and/or their lawyers) can resolve the matter without the need for third-party intervention (such as a mediator).

This is what happened in the situation I described at the start of this post. The parties were perfectly able to negotiate without me, and they did.

  • The matter at stake is not subject to compromise or negotiation (although most disputes do involve issues that can be negotiated)

Sometimes, there is a matter of principle on which one party wants a court to rule, such as the constitutionality of a statute. While mediation might narrow the issues in such a case, it is unlikely to resolve the whole dispute. The parties, even with the aid of a mediator cannot resolve these matters of principle, where the result desired is bigger than the dispute between the specific parties to the case.

Apart from these situations in which mediation is not needed, mediation is also not appropriate when:

  • The parties don’t know enough about the facts yet

Sometimes mediation is attempted too early in a dispute. If both parties don’t know their own facts and evidence, then it is difficult for them to negotiate and reach agreement. But it is a good idea to attempt mediation prior to investing a lot of time and money into discovery of the other side’s position. Good mediators can draw out enough facts from the parties to define the contested issues and enable a reasonable settlement.

I would not rule out early mediation in a case, but I would advise parties to know as much as possible about their own position in the dispute. And I would encourage candor during the mediation itself. Hiding facts and evidence is not likely to improve the chances of a good settlement.

  • The dispute deals with the rights of someone who is not competent to enter into a legal agreement or physically or mentally unable to participate in the process

If one party is a minor or mentally disabled, then that person is not able to participate in negotiations without a legal representative.

Also, mediation can be a long, tedious, and frustrating process. If one party does not have the physical or mental stamina to participate, then either the mediator should make allowances in the timing of mediation sessions or mediation should not occur. It’s important to be upfront with the mediator about the parties’ capacity to participate in the process.

  • There is an overwhelming imbalance between the two sides

If one party holds all the cards in the lawsuit, it might be difficult to reach a fair settlement. A good mediator is skilled at dealing with imbalances of power, but it is possible that one side might feel pressured into accepting a poor settlement.

I am inclined not to forgo mediation when I sense an imbalance of power, but I might well stop the mediation if I sense the process is unfair. I would suggest that the parties get attorneys or family members to assist them, or I would recommend they let the case proceed to litigation. Thankfully, these situations are rare.

When has mediation helped you? When has it not?

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Filed under Law, Mediation

J. Anderson Little on “Making Money Talk”—an Approach to Mediation

making money talk littleI recently had the opportunity to hear J. Anderson Little speak about mediating claims where money is at stake. He has written a book, Making Money Talk, that deals with this same subject. In fact, most lawsuits involve disputes over money, and most mediations and settlement discussions are therefore negotiations over how much money one party (usually the defendant) will pay to the other party (usually the plaintiff).

I’ve written before that I am not a transformative or interest-based mediator. I tend to be more evaluative. Most former lawyers and judges who mediate tend to be evaluative. Their careers have been spent evaluating lawsuits, and they know that in many cases there is no ongoing relationship between the parties to try to preserve. These mediators leave the transformative approach to social workers and psychologists.

Mr. Little’s presentation made it clear that he eschews the interest-based approach in favor of going straight to the heart of the matter—the parties’ positions on the value of the case, which is in fact an evaluative approach to mediation. But he also emphasized that as a mediator he is not the one evaluating the case. Instead, he helps the parties and their attorneys make their own evaluations.

Mr. Little explained that parties who do not rationally assess their positions during a mediation tend to devolve into a “death spiral” that makes it harder for them to reach a good settlement. The mediator’s role is to steer the parties away from the death spiral and to facilitate their rational discussion of the case. Mediators do this by facilitating

  • the flow of information,
  • analysis of the merits of the case, its risks, and each party’s BATNA (Best Alternative To Negotiated Settlement), and
  • movement in the parties’ positions on settlement.

Mr. Little favors use of decision tree analysis to assess the likelihood of various outcomes. Litigants tend to evaluate a settlement proposal against their best case—what they perceive as total victory. But it is important for litigants to assess the likelihood of obtaining that victory, as well as the cost of doing so. I started using decision tree analysis in the mid-1980s as a defense attorney, and it always helped me evaluate my cases.

Here’s how it works:

  • A settlement offer of $500,000 may not seem very appealing if a plaintiff thinks he can obtain a $2 million verdict. But if there is only a 20% chance of obtaining that verdict, then a $500,000 settlement is a better deal than going through the risk of a trial.
  • Or, if there is a 50% chance of getting the $2 million verdict, but it will cost $1 million to get through trial, then the real value of the verdict is $1 million, and the $500,000 settlement is equal to the weighted odds of getting the verdict.

Mediators can help the parties assess their monetary claims rationally. It all boils down to leading the parties to determine their most likely outcome is if the case doesn’t settle. What is each party’s BATNA, and is there overlap between the parties’ positions? If so, how should the parties plan their settlement offers to avoid impasse and reach an agreement?

Unfortunately, too often parties send the wrong signals in their offers and counteroffers, and their miscommunications lead to impasse. Mr. Little recommends that parties have a plan based on their own assessment of the appropriate settlement range. Parties should refrain from letting their emotions cause them to punish the other party for unhelpful approaches during the mediation.

Mr. Little’s approach jibed with how I always approached settlements as a defense attorney, and how I approach damage cases as a mediator. I have always thought that lawsuits settled when the parties were equally unhappy with the settlement. Mr. Little didn’t really dispute that attitude, though he offered ways in which mediators can help the parties get more comfortable with settlements. I have not read Mr. Little’s book, but it seems like a worthwhile addition to a mediator’s library.

When do you think it is important to use an evaluative approach to mediation, and when does an interest-based approach work better?

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Filed under Law, Mediation