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Newsletter Issue 2

Practical Approaches
to Resolving EEO/AA Problems
Issue #2
Fairness Motivates Juries
It is important to remember that you may find yourself in a court of law defending any employment decision you make. Should that be the case, could you produce records proving the legitimacy of the action? Could you establish that all the steps of a disciplinary policy were taken before an employee was terminated? Would the application, reference checks, and interview notes support the correctness of a hire against a challenge by someone claiming the hire was racially or gender biased? The same questions could be asked about promotions, salary increases, training and a host of other employment decisions we make on a daily basis. Employees and the population in general expect companies to be fair in their treatment of applicants and employees.

The attitude of Jurors toward company employment decisions reflects some interesting facts. Dan Gallipeau at a conference on the use of expert witnesses in Orlando Florida discussed this subject. He made some observations that are well worth repeating:
  • Jurors’ (94%) general belief is that employers are legally responsible for their employee’s actions.
  • Most jurors are motivated by fairness, not the law, and are more than likely to go with their gut instincts than statistical proof.
  • 88% of jurors believe that companies care more about profits than their employees.
  • 53% believe the company will retaliate against an employee
  • 78% believe the company will lie to win.
  • 92% of jurors believe that a supervisor who harasses should be terminated but only 83% believe the company will do it.
  • 35% of jurors are inclined to award punitive damages without proven intent
  • 39% of jurors believe that compliance with the law is not as important as the spirit of the law.
In the juror’s mind, it is more important to show that a company cared. It would be difficult to overstate the need to develop a schedule for the review of company policies and practices to ensure they reflect the welfare of its employees as well as needs of the company and that the policies are actually being followed in every day employment decisions.

Wilson v. Delta State University 5th Cir. No. 04-60759

Wilson was the director of the audio-visual center at the university from 1983 to 2001 when his contract was not renewed. Roberts, a new supervisor was appointed without advertisement for the position. Roberts consolidated the center with new technology that resulted in the elimination of Wilson’s job. Wilson complained to the university president that Roberts was not qualified and that the only reason Roberts was selected was because she was having an affair with a university administrator. The 5th Circuit ruled as follows:

“When an employer discriminates in favor of a paramour, such an action is not sex-based discrimination as the favoritism, while unfair, disadvantages both sexes alike for reasons other than gender.” The Circuit court took the position that “it is settled law in this Circuit (5th Circuit) that such paramour favoritism does not run afoul of Title VII …”

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