Should you stay or should you go? The team at Simone sat down with Eric Bachman to answer questions about getting legal counsel on discrimination or harassment issues at work.
Eric is a Principal with Zuckerman Law, where he is the Chair of the discrimination and retaliation practices. Bachman has served in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division. His wins include a $100 million settlement in a Title VII employment discrimination class action, a record-setting Whistleblower Protection Act settlement, and a $16 million class action settlement against a major grocery chain.
Eric, many of the people we’ve spoken to have had questions about when and how an employment lawyer can be useful. There’s a misconception that employment lawyers may only be necessary if someone wants to litigate severe harassment issues.
But as we know from personal experience, there are many different considerations when helping someone separate from an employer. Can you walk us through a few instances where people could seek employment counsel, but not litigate?
There are a range of scenarios where it helps to work with a lawyer, even if you’re not intending to litigate a case in court. If the workplace culture is becoming unbearable, and the employee is fed up and wants to negotiate an exit, it is common to enlist the help of a lawyer to get the best deal possible.
Sometimes, the employee wants to stay at the company. So they need to talk to a lawyer about how to register a complaint properly, and how to deal with potential retaliation from filing that complaint.
Finally, there are people who just want to get guidance and know what their options are. Is what they’re experiencing sexual harassment or discrimination — or is it rude and obnoxious behavior? Sometimes what they are experiencing may be uncomfortable, but not illegal.
Can you give us an example of someone who has registered a successful complaint with HR, and the company has acted to help the employee?
If the company is quick to get in touch with you after you’ve filed an official complaint to find out more and conduct a real investigation, that is generally a good sign. They don’t just sweep things under the rug. Generally, the bigger the company is, the more likely you are able to come up with a solution that allows the employee to stay there, such as transferring, demoting, or terminating the person who was harassing the employee, or creating a different reporting structure for that employee. For smaller companies, it’s not necessarily that they don’t want to do the right thing, they often have less options.
So then what happens when the employee wants to stay, but the company doesn’t take them seriously?
At that point, negotiations often switch to finding the best exit package for that employee because they see the employer won’t address the problem. A lot of factors need to be considered in the negotiations, including lost pay, potential harm to their professional reputation, and emotional distress damages.
It is critical to review the evidence and documentation the employee has kept. The employee should keep notes of different instances of exclusion, harassment, and toxicity. Were there any witnesses around that heard that sexist joke? Is it explicit that you were expected to go out on a date with someone to help your career? Do you have examples of male colleagues receiving different or preferential treatment?
When it comes to harassment, texts and emails are important to preserve. Employees should also lay out all the facts to the attorney, both good and bad. If, for example, you were working on a project and things just went really poorly, it’s not a great fact, but it’s something your attorney needs to know, so they can give you sound legal advice. Same with good work — make sure you track evidence of all of that.
It’s really important to be as credible as possible when having these negotiations. You don’t want to exaggerate what has happened to you.
Let’s talk about financial empowerment. We’ve learned that oftentimes, a lot of women are afraid to leave difficult situations because they don’t have the financial cushion to forgo a paycheck. Exit packages are critical to moving on from a bad work experience; Les Moonves and Andy Rubin managed to negotiate golden parachutes despite allegedly coercing sex from women. Women should as injured parties after experiencing gender discrimination or sexual harassment be able to secure exit packages that do them justice without having to litigate. That brings us to severance agreements.
We’ve heard in the past that people were told they weren’t “culture fits” within the organization. It was implied that they should just leave, with no money. This is a major myth: that we are forced to choose between misery at an organization, or no job and no paycheck.
What is the best way to go about approaching severance? What are the stipulations that everyone should ask for in their agreement when they part (in a not so amicable way) from their companies? What facts from the work environment and individual experience should be included in a severance negotiation to ensure a great leaving package?
Often in the settlement agreements, there will be a few provisions that are really common, so you should be prepared to know them.
One of those provisions is a non-disparagement clause. If the employer wants a non-disparagement clause, one approach is to ensure that everything is mutual. For example, if the employee is agreeing not to disparage the company, then the company needs to also agree not to disparage the employee.
There is also often a pretty severe penalty if an employee violates the agreement. The penalty for a violation should be the same for both the employer and employee.
So clearly there is a huge gap between the few hundred or thousand dollars an average employee may receive post-termination, and the $90–120 million severance executives receive after they’ve harassed someone and are asked to leave. Can you talk about why society is set up this way today?
The discussion around golden parachutes after someone has harassed employees really needs to be had, because these events are really the opposite of justice. The reason that these executives can get these huge payments is because they negotiated payouts into their employment contracts. I hope that more and more companies will include stipulations that if the executive participates in gender discrimination or sexual harassment, the company does not need to pay the severance out. A kind of “poison pill.” I hope to see this become the standard going forward.
Executives need to set a tone where discrimination cannot be accepted, and harassment needs to be stamped out. It really impacts the workplace culture when that comes from the top.
So that brings us to looking at how executives are hired and how women start to think about negotiating their employment contracts. How should people negotiate upfront?
Some employers expect that there will be negotiations around the employment contract, and then some would take it as an insult. But assuming that you are working with the former, an executive negotiating severance in the employment contract should understand what “termination with cause” means for the employer. Being terminated “with cause” may prevent the employee from getting any severance payment, so it’s important to know what is defined as “cause.” An attorney can help you amend the provision so it protects you should you leave as a result of a hostile environment.
So hopefully, because of the #MeToo movement, people have realized that groping a woman colleague at a work happy hour is not an acceptable way to act. But what about the more subtle situations? The workplace flirtation that’s causing a distraction? The bro culture that intentionally or unintentionally leaves out women and minorities? A romance between a manager and his subordinate that has ended, leaving someone with little recourse to advance in the company or work productively with her manager?
We get the sense that it’s confusing for many people to decipher what might be a solvable or normal workplace conflict, and what might be actually discrimination or harassment. How should people evaluate their workplace problems? Once they’ve identified the problem, and have decided they want to leave, how would you advise broaching the subject with the employer and negotiating an exit package?
This is one of the most hotly contested areas in courts and in settlement negotiations — what constitutes a legal hostile work environment or sexual harassment? There are some blatant examples, like groping or quid-pro-quo scenarios. There are also more subtle but just as toxic incidents, like routine sexist jokes, porn on computers that’s being sent around, or a “boy’s club” of social situations where only men are invited. Consistent comments about someone’s appearance or body are also considered discriminatory.
When you get into the more subtle conduct, you need to show that these jokes are based on someone’s sex or gender, and that this has happened regularly. The courts assume that there are obnoxious colleagues or horrible bosses. For example, a horrible boss who treats everyone badly represents a toxic environment — but not necessarily sexual harassment or gender discrimination.
A few off-handed remarks or very infrequent off-color jokes (referred to as a “stray remark”) are also not enough to prove discrimination. But if the situation is pervasive and frequent, and the employee is consistently experiencing exclusion, bad assignments, or sexist jokes, then they have a case.
Of course, women in hourly or blue-collar type work face a whole set of circumstances that women in corporate jobs might not. That restaurant manager who told you you were required to wear a dress to “please” the male guests? He may be creating an incredibly hostile work environment for you, whether you’ve recognized it consciously or subconsciously. Or having yoga pants excluded from the dress policy which singles out women unfairly and when a queer woman expresses this a problem, the male leader mentions how “distracting” they are. He is participating in a different form of sexual harassment, which is just as damaging.
For women in lower-paid or hourly work: what options do they have — and can they be affordable? Can they go to HR, or will that make them a target for termination? How can they identify issues and raise them in a way that won’t be scoffed at or swept under the rug?
That’s a really important point — there are certain industries where traditionally the mindset has been “well, you should expect to put up with a certain level of harassment or discrimination, because that’s just how it is.” That’s very problematic. Most of the options we’ve been discussing are also available to some of these employees we are talking about now. However, if you don’t have a policy through an HR department on how to make those complaints, it’s still extremely important for the employee to lodge a complaint and ensure there is a record. So if the company fires them, they have an additional claim of retaliation. That’s important and when it’s helpful to get employment attorney.
Sometimes attorneys will take a case based on a contingency basis, where they only take money from the client if a case has been won.
It’s a shame that people are not able to take that litigation step because of their financial situations. That’s where the power dynamic is even more at play, where the employer knows that the person is completely dependent on this job.
Finally: what do you love about what you do? This isn’t always the easiest line of work. Do you have examples of what it is that gets you up in the morning?
For me, first and foremost, it’s the opportunity to help people who are at the lowest point of their lives, or at the lowest point of their professional lives. Many times, I’m talking to people who have been at their jobs for years or love their jobs and out of the blue they are demoted or fired. And that experience just sets them back on their heels and really destroys their world.
From a legal perspective, I enjoy the David and Goliath aspect of the job. These are hard cases to win, and we are going up against big companies and great lawyers. But I like the challenge.
I just finished up a jury trial for a client who has been fighting her case for the last four years. She experienced incredible vindication after getting an unanimous jury vote confirming that yes, she would have been able to achieve all of these things had she not been in a discriminatory environment. That psychological value is just huge. To be able to help begin that healing process is to me one of the great gifts of the job and always has been.
That’s amazing, thank you Eric for everything you do!
This piece was originally published on Simone, and republished here with permission.
