Trial Magazine

Many people will tell you that employment law is complex. I disagree. Employment law is simple enough to explain while standing on one foot: Give everyone an equal opportunity, keep the promises you make, encourage people to speak up when something is wrong, and don’t abuse your power.

Employment discrimination and retaliation cases contain maxims of morality. Yes, there are legal minefields for the unwary. Yes, defense attorneys will throw in bad facts to distract jurors. But by applying proven trial techniques to simplify employment cases, you can stand firmly balanced on the high ground.

Make the Rules Clear

Success at trial depends on cutting through the ambiguity, complexity, and confusion to return to simple, concrete rules. The well-known Rules of the Road method simplifies employment cases to deliver a positive outcome in five steps:¹

• Find a requirement the employer must follow.
• Present the rule in simple, jury-friendly terms.
• Make sure the employer cannot credibly dispute the rule.
• Be sure you can show that the employer broke the rule.
• Choose a rule so important that proof it was broken will lead to a verdict in the employee’s favor.

A good rule is one your human resources expert or the defendant’s employees will agree is correct. For example: “An employer may not treat an employee differently based on race.” Or: “An employer must let an employee with a disability work if he or she can do the job.” The key is to distill the law to its essence.

Once the case becomes a simple matter of right and wrong, jurors will feel empowered to step in. A well-developed case should offer plenty of circumstantial evidence that proves, more likely than not, that discrimination or retaliation was behind the employer’s treatment of the plaintiff. Aggravated liability requires an obvious violation of a clear and undisputed employment rule. To establish a clear violation of a rule, you must simplify your case.

In a recent case, our clients were two airport employees who blew the whistle on an elected port commissioner who was pressuring them to break the law.² The commissioner wanted them to give preferential treatment to his political donors who owned restaurants at the airport. When our clients reported his ethics violations, the commissioner searched their emails for misconduct. Unfortunately, he found a handful of unprofessional emails, including one email in which one of our clients called a restaurant owner, who was bullying her, a “thug.” The commissioner took those emails to the press, branded our clients as “racists” (the restaurant owner was Black), and pledged to have them fired. The port obliged.

It was clear our clients had suffered retaliation that cost them their jobs. We argued that if not for the retaliatory motive, no email search would have been conducted. And without the search, there would be no excuse to fire them. But our clients’ emails were distracting, and we knew some jurors would have a strong negative reaction. We had to keep the jurors’ attention on the commissioner’s conduct.

Our first step was to educate the jurors on the basic legal framework of retaliation. We began our opening statement describing the three central rules of our case:

• Employers must not fire employees for refusing to break the law or for reporting misconduct.
• Employers must never be influenced to fire employees by the retaliatory acts of others.
• Employers who fail to protect employees from retaliation are responsible for the harm.

These were rules everyone could endorse, and we could prove they had been broken.

Next, we explained why these rules were important in our clients’ case: Public money should be spent for public good and not for private interests. This is the reason ports encourage employees to report misconduct and promise to protect them from retaliation.

We presented our rules throughout the case. In direct examination, our clients explained how they checked to be sure they were right about the law. But even after they refused the commissioner’s demands, he would not let it go and kept the pressure on. They described their nervous and tearful calls to the ethics hotline to report the commissioner and their fear he would find out they had called and find a way to get them fired.

On cross-examination, witnesses said the commissioner was irate when he learned of the ethics complaint against him and suspected our clients were behind it. The port’s director admitted he felt pressure from the commissioner to fire our clients. Multiple witnesses testified the public firing was devastating to our clients.

In our closing, we acknowledged the unprofessional emails but emphasized that the three rules were so strong that even imperfect people are protected from retaliation. We stuck to our three rules, knowing that the first job of a defense attorney is to complicate. Our job was to simplify.

Cut Out the Bruises

Another defense tactic is to distract. Defense attorneys know that most employees make mistakes sometimes. This makes it easier for an employer to claim that a mistake or misconduct was the true business reason for firing an employee. But jurors also know that most people (even themselves) sometimes make mistakes at work. And they know that not everyone who does something wrong gets fired. So how do we respond to the inevitable attack on our clients?

A common approach is to take the fight head-on and prove the criticism is not true or fair. This is usually the approach our clients ask us to take. But the problem with this approach is that you are no longer focusing jurors on the misconduct of the employer and the harms and losses it caused. Instead, you are agreeing that the issues the defendant wants to talk about are the important issues.

A better approach is to deal with the bad facts while staying within the framework of your case.³ Consider how to address your client’s imperfections without jumping into the deep end to save him or her. You win by staying focused on the employer’s bad acts. The smarter play is to think creatively about how you can exclude, own, or contextualize your client’s worst facts.

Excluding bad facts. There are opportunities to exclude bad facts by adjusting your case theory or strategy. We used this exclusion technique repeatedly in our airport case.

Our clients were not perfect. They worked hard under stressful conditions, and to let off steam, they used their work emails the way some of us use text messages. They sent each other cutting and snarky commentary during commission meetings. To make matters worse, after we filed suit, the port found additional unprofessional work emails. The port claimed this second batch of emails was after-acquired evidence that would justify firing our clients again.

To keep the jurors focused on the employer’s obvious violation of clear employment rules, we worked hard to keep the newly discovered emails away from them. We worried the jurors would not care as much about the retaliation if they knew the emails the commissioner had uncovered were just the tip of the iceberg.

Before trial, we filed a motion to bifurcate the after-acquired evidence, arguing that the new emails were unduly prejudicial and irrelevant to the question of why the port fired our clients. The court agreed and ordered that the defense could only present the new emails at the damages stage.

But we decided to go even further after the jury returned a liability verdict. To avoid losing the jurors’ hearts and minds, we made a radical decision: We dropped the claim for future wage loss. This left the defense with a bag of bad emails but no basis to get them in front of the jurors. We sought only lost wages and emotional distress.

By controlling the narrative, we kept the jurors focused on the employer’s bad conduct and kept our clients’ flaws out of the spotlight. When confronted with bad facts that could jeopardize the case, carefully consider whether you can tailor your claims to avoid those facts at trial or whether there is a basis for a motion in limine to prevent those facts from coming before the jury.

Commandeering bad facts. Another great way to shift the evidence in your client’s favor is to take the defendant’s facts and make them your own. Take a fixed fact that the defense is using to support its side on a key issue, and consider whether you can reclaim it to support your side.

Take a fixed fact that the defense is using to support its side on a key issue, and consider whether you can reclaim it to support yours.

In our airport case, the defense argued that one of our clients failed to look for work and that this failure should cut off her lost wages because she had failed to reasonably mitigate her damages. It was true that our client had not looked for work. But she wasn’t lazy—she was struggling to overcome her very public and humiliating firing. Although not searching for work was seemingly inconsistent with our claim for lost wages, we reclaimed this fact by pointing to our client’s inability to look for work as further evidence of her emotional distress.

Contextualizing bad facts. Not every bad fact can be excluded or commandeered—but many bad facts don’t look as bad when placed in context. Your client is an expert on the facts. When you fully understand your “bad facts,” there are often ways to make them relatable and take out the sting.

In our airport case, we addressed the emails that the commissioner used to justify firing our clients by placing them in context without defending them. Our clients admitted fault. One testified she should be “thumped on the head” for sending those emails. The other explained that she did not know the term “thug” had racial undertones, and if she had, she never would have used that word to describe her bully.

When we presented the emails in opening and through testimony, we used them to illustrate the pressure cooker our clients were in when they wrote them and how our clients bonded together by being outspoken in their personal communications. The emails were not good, but by placing them in context, we showed that our clients were excellent employees pushed to the brink after a long struggle to do what was right. And it turned out that sending some ill-advised emails was a very relatable mistake for many jurors. In the end, the jurors returned a verdict for our clients.

Remember to keep the focus on the rules that you identify for your client’s claims. The beauty of this strategy is that it helps dictate what evidence you need and what you can leave on the cutting room floor. If a document or bit of witness testimony does not establish one of your rule violations, leave it out. And even if there are bad facts, don’t panic. Instead, find ways to exclude the worst facts, commandeer the defense’s best evidence, and add context to the very human mistakes that people make when under pressure.

Employment laws are all about protecting imperfect people. By reducing complexity and staying within the winning framework, you can obtain justice for your clients.

Beth Bloom is the principal attorney of Bloom Law in Seattle and can be reached at www.bloomlawpllc.com.

Notes

1. Rick Friedman & Patrick Malone, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability (2d ed. 2010).
2. Elizabeth Quick, of Quick Law Group in Bellevue, Wash., served as cocounsel.
3. Keith Mitnik’s book Don’t Eat the Bruises: How to Foil Their Plans to Spoil Your Case (2015) is an excellent source to learn more about handling bad facts.