Many lawyers (and HR professionals) often feel a sort of cognitive dissonance when it comes to employment law. We believe passionately in the underlying value of equal employment opportunity. After all, harassment and discrimination are more than just illegal; they are morally repugnant.
Yet, many of the cases which we defend lack merit. In some cases, the complaints are downright frivolous.
Take the employee who was discharged for sleeping on the job. The employee claimed his employer failed to accommodate his sleep apnea. By the way, that employee was an emergency health care provider.
Or, consider the case in which an employee alleged she was laid off because of her gender. The fact that she was the only woman laid off and more than 100 men were laid off did not deter her claim.
These types of claims are one side of the state of employment law. And it's not a pretty picture.
But there's another side of the state of employment law. And those are the claims which are not filed.
Take the organization which has nine executives, eight of whom are male. The one female executive is paid materially less than her male counterparts for no clear reason, but does not bring a claim.
Or look at the African American manager who applies for a promotion to an executive position but is passed over in favor of a white manager with arguably weaker credentials but with whom senior management feels more comfortable. He too continues to do his job well without challenging the decision.
The jarring juxtaposition between the claims which are brought and the claims which are not was explained more than 30 years ago by Janis Joplin. As she plaintively crowed in Me and Bobby McGee : "Freedom's just another word for nothing left to lose. And nothing ain't worth nothing, honey, if it ain't free."
The reality is that most individual employment claims involve employees who have lost their jobs or make very little money. In other words, they have nothing or virtually nothing left to lose. Not surprisingly, they sue.
Conversely, those at the top who may have experienced discrimination have a lot to lose. Legal protections against retaliation notwithstanding, an employee who is making $100,000 per year but who arguably should be making $125,000 per year will think twice about trying to remedy the wrong by way of the legal process.
This "risk" factor results in our seeing a skewed picture of the workplace. Employees at the bottom who have experienced no legal wrongs sometimes bring claims because they have nothing to lose while employees near the top who might have viable claims refrain from bringing them because they have everything to lose.
As a result of this risk factor, we cannot assess accurately the prevalence of societal discrimination and the concomitant necessity for strong legal protections based solely on the claims which we see. If we reach broad conclusions based solely on these claims, we may erroneously discount the perseverance of societal discrimination.
If this occurs, we risk the legal and business costs of failing to see conscious and unconscious bias where it does exist, particularly when it comes to access to power positions at the top. We also risk becoming angry, jaded and bitter. And that may be the greatest risk of all.
Published November 1, 2005.
