Work Matters

Ask innovator questions to challenge assumptions

I value questions, so I really liked "The Innovator's DNA" by Jeffery H. Dyer, Hal B. Gregersen and Clayton M. Christensen in the December 2009 issue of the Harvard Business Review. The authors write that most managers ask questions that perpetuate the status quo, such as "How can we promote widget sales in Taiwan?" as opposed to innovator questions that focus on challenging assumptions, such as "If we cut the size of the widget, how would that change the value proposition it offers?" They counsel asking questions starting with "Why?" "Why not?" or "What if?" They also suggest questions based upon an assumed constraint, such as asking how the company would make money the following year if its main product became illegal or questioning sunk costs by asking a manager: If the company had not already spent the money on the project, would he or she do things the same way again? Always question the status quo. Question authority. But questions only are useful where there is a culture of candid caring. Beware: Many organizations do not like those who ask questions. An organization may say it welcomes queries but in reality does not; it just wants to flush out those who are different. Such companies are the past, not the future. With that caveat, question away.

Use the anchoring bias to buoy up performance in mediation

Let's talk mediation by way of Genghis Khan. Quick, what are the first three numbers of your telephone number? Now tell me when Khan died. Most people say it was the first millennium, which has three digits. But no, he died in 1227, the second millennium, which has four digits. Why do people make the three-digit guess? Because the first question primed their minds to give three digits answers. "Many studies have shown that when faced with a question to decide, people will anchor their responses to almost any number, even implausible ones, especially if that number is given to them first," writes Joseph T. Hallinan, who describes the Khan experiment in his book, "Why We Make Mistakes: How We Look Without Seeing, Forget Things in Seconds, and Are All Pretty Sure We Are Way Above Average." Not convinced? Look at "How We Decide" by Jonah Lehrer. He describes the "bidding" experiment, in which subjects are asked to write down the last two digits of their Social Security number and then to bid on items, such as a cordless phone. The subjects with the higher Social Security numbers (80-99) made the highest bids (an average of $56), while those with the lower Social Security numbers (1-20) bid an average of $16. These experiments show the power of the anchoring bias. Human beings get a number in our heads (the prefrontal cortex, to be exact), and it takes up valuable cognitive space. It is therefore hard for our brains to let in rational facts and ideas. Our brains are filled up. Lawyers can use their knowledge of anchoring techniques in mediation. Lessons:

1. Go in and make the first offer. Too often we see this as a sign of weakness ("Oh, the other side will think I am too eager to settle.") 
2. Tell the mediator early on where you want to end up. Make it a range if you like. The mediator will work towards your range and be anchored to it. Important note: Be honest. Don't suggest one range when you are really shooting for another.
3. Talk to the mediator beforehand. Make your comments factual. Mediators are not judges; there is no rule against ex parte contact. Prime the mediator for what he or she will see at the mediation, such as a client who's new to mediation, etc.
4. People are not rational. We are driven by forces unseen to us. Knowing this allows lawyers to use our reptile brain to our advantage.

Ways to win on cross-examination

Here's is one of my guilty pleasures: the Dallas based TV show "Cheaters." It generally features unfaithful significant others or spouses being followed and exposed. I love it. So, a post on Elliot Wilcox's blog, "Winning Trial Advocacy Tips" about what the show can teach lawyers about cross-examination, caught my attention. The big idea: People, when caught, will lie. They will shift blame, saying, “Why did you have 'Cheaters' follow me?" instead of "Gee, I am sorry." His advice: On cross-examination, don’t let a witness lead you astray and go down a rabbit hole. Don't try to convince him you are right and he is wrong. Instead, plant doubt about his veracity. Here are two of my favorite questions to use on cross-examination in an employment case. I have asked plaintiffs, "Are you saying that the manager had no redeeming qualities whatsoever?" or "So, you are saying you bear no responsibility for the mistakes that led to your termination?" This one has been used on me: "Mr. HR Manager, what grade would you give yourself on the investigation you conducted?" Both questions are extreme questions. They force the witness to either say he is perfect (no one is) or that he could have done some differently (i.e. better). Either way, the cross-examiner wins. They are ways for witnesses to cha-cha around the questions but not if they are unprepared.

Treating everyone badly may no longer be a defense to a sex-discrimination claim

Is the equal-opportunity defense showing a few cracks? It’s the argument that a manager who treats both male and female employees badly does not discriminate "because of sex." The answer appears to be yes, according to a Jan. 20 en banc decision by the 11th Circuit, Reeves v. C. H. Robinson Worldwide Inc. In a case where men and women were called "b----" and "whore," the court rejected this defense, writing: "It is undeniable that the terms "b[----]" and "whore" have gender specific meanings. Calling a man a "b[----]" belittles him, precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace." So, the fact finder can use comments made to both genders to determine whether there is a sexually hostile work environment based on sex. For more thoughts on this case and the state of sex discrimination law, listen to my podcast, "Recent Rulings in Sex Discrimination Cases."

It's not that hard to say you're sorry

There was an interesting article in the Jan. 30 issue of The New York Times, "An Attempt to Revive the Lost Art of Apology."Alina Tugend notes that there have been all sorts of apologies flying around lately, including those of bank execs over the meltdown. The keys to a real apology, as I’d summarize her article, are these: 1. I acknowledge my fault or offense; 2. I regret what I did; 3. I accept responsibility for what I did; and 4. I will fix it, and here is how (if possible). Saying "I want to apologize" is not an apology. Need help? She notes you can go to Apologypros.com for tips on how to apologize. Listen to my take on the topic on my podcast, "Evaluating Apologies in the Workplace."

Lawyers, firms must embrace social media

I am in Boston this week on a case. Boy, it is cold. Anyway, it is a long flight, and I read "The End of Lawyers? Rethinking the Nature of Legal Services" by Richard Susskind. He talks about social media and firms, a topic in which I am especially interested; I have argued that firms should train all lawyers in social media and give them billable credit for participating in it. Susskind seems to feel the same and writes:

Why on earth should lawyers feel they are exempt from using tools that are enabling others to communicate and network with unprecedented ease? We say to our young lawyers that they must nurture their contacts and build their social networks. And yet we do not encourage them to exploit tools that are surely more effective than the clunky systems of yesteryear . . . most lawyers currently manage their network of contacts through an unholy confusion of business cards, handhelds, rolodexes and databases. Why not embrace a powerful and simple way for lawyers to keep in touch with their clients, colleagues, and contacts?

Why not, indeed? I think it’s fear — fear of the new, of being different, of looking foolish, of being the first. But most fears are misplaced. Once we simply do what we fear, we often ask ourselves, "What in the world was I so afraid of in the first place?"

How should employers handle offensive language from an employee?

I got to thinking about Rahm Emanuel's reported comment that some Democratic legislators are "retarded." Calls for his firing soon arose, as described in a column from the Denver Post. I see these issues arise in the workplace. Three points, the first made by the column: What was the intent behind the statement? None of those to whom it was directed are mentally challenged. The term, according to the columnist, is an unfortunate one that some people take with them from childhood into adulthood. The columnist compares it to use of the "n" word directed towards an African-American. When that word is used, there is no doubt as to intent. A second point from me: Always ask, what is a proportionate response to the employee's conduct? This second question is twisted together like a pretzel with the first question. Third, I think employers should ask whether the use of an improper word is an aberration or a pattern. Before firing someone, ask these three questions.

Supervisors can't stick their heads in the sand to avoid knowledge of harassment

Under current case law on harassment, an employer is deemed to know of the harassment if a supervisor knew or should have known about it. On Dec. 4, 2009, in a summary judgment case, Duch v. Jakubek, et al. the 2nd U.S. Circuit Court of Appeals said that an alleged ostrich-like attitude of self-delusion by a supervisor would not shield an employer from knowledge and thus potential liability. The court summarized what the supervisor knew or was told:

• He knew that the employee sought a change in her work schedule when she was assigned to work alone with a certain male employee;
• He learned from other employees that she did so to avoid working alone with this employee;
• This male employee told the supervisor he had done or said something that he should not have done or said;
• He knew this male employee had engaged in sex-related misconduct towards females in the past; and (here is the kicker)
• When the supervisor spoke to the female employee about the male employee, she became emotional, told him "I can't talk about it," whereupon he answered "That's good because I don't want to know what happened." The supervisor then changed the female employee's schedule so she would not have to work with the male.

In reversing the summary judgment by the trial court, the 2nd Circuit said that a reasonable jury, from these facts, could conclude that the employer had at least constructive knowledge of the alleged sexual harassment directed at the female employee:

In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees. We merely recognize that . . . when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance — as [this supervisor] is alleged to have displayed — will not shield an employer from liability under Title VII.

Every employer, supervisor and manager needs to learn this mantra (which comes courtesy of one client's organization): Knowledge requires action. One other point lawyers should teach employer-clients early on in the representation: On summary judgment a court draws reasonable inferences from facts to the benefit of the nonmoving party (generally the employee, not the employer). Why? The American system values a litigant's day in court to prove his or her case. This standard protects us all, and a defendant will value it when its time comes to be the plaintiff in some commercial dispute.

Will 6th Circuit case result in cert grant, end employee-rights run at high court?

Simple facts: A female employee files an EEOC charge against her employer, claiming gender discrimination; three weeks later her fiancé, who also works for the same employer, is fired. He says it’s in retaliation for the filing of the charge; the employer says it’s for legitimate reasons. Complex issue: Can he sue for retaliation even though he is not an employee opposing an unlawful employment practice or participating in the EEOC process? On June 5, 2009, in Thompson v. North American Stainless LP,a sharply divided en banc 6th U.S. Circuit Court of Appeals said no, focusing on the section of Title VII outlawing retaliation against those who have opposed unlawful discrimination or "participated in any manner" in an investigation or proceeding under the law. By contrast, the dissent focused on the language in the law affording protection to employees who are "aggrieved," which covers more employees than those who oppose or participate. Last week the U.S. Supreme Court asked the Office of the Solicitor General office to chime in on whether it should grant cert. I hope the court does hear the case. This is intellectually interesting. The last two retaliation decisions by the high court were pro-employee. The court has been solidly behind employees in cases involving access to an employee's rights. Will this case turn out to be an extension of those or prove a bridge too far?

What would Buddha blog?

Writing a blog prompts me to think about how others write them and what (if any) effect they have. As to writing, an interesting post on Buddhism and blogging from "The Blog Herald" advocates that bloggers follow Buddhist principles of right action. Bloggers should better people's lives and selflessly share knowledge; consider any bad effects a post may have on another; eschew plagiarism; give the endeavor their all; and see things clearly, as they are. As to effect, check out the "Race to the Bottom" blog, on which a post talks about the impact of blogs on the judicial process. This blogger argues that law clerks use blogs as research and that some blogs influence judges. I recall the old saying that U.S. Supreme Court justices read the newspapers; maybe blogs are the modern substitute. The post cites law review articles on the ethics of all of this, presuming it takes place. While I enjoyed the post, I have doubts about whether most judges and their clerks are surfing the Web and exchanging links. But both posts, in their own ways, raise issues about the ethics of legal blogs. We will see more discussions, not fewer, as social media pervades our lives.