Work Matters

Lead by serving

I am thinking a lot about leadership. What is it? How can people tell the fake goods from the real deal? So, I enjoyed reading Michael Useem's piece in the Harvard Business Review,"The Leadership Lessons of Mount Everest." He took a group of professionals to hike up to the 18,000 foot line on Mount Everest. They had adventures and came to a very Buddhist understanding of leadership, as he relates in his article. First, leadership is built by serving. Second, leaders truly serve when they subordinate their private needs and welfare to that of all others. Do both, and the real-deal leader gets something the faker never will achieve: moral authority. Useem writes: “In business, executives and managers are frequently tempted to put their own careers first. They may let their egos cloud their thinking or find convenient ways to rationalize decisions that are based purely on their own interests. . . . Ultimately, though, much of the strength of an organization depends on leaders who are concerned with doing what is best for their followers.” So which are you? If you’re a follower, which type of leader do you follow? I know some guys who subconsciously equated being tall with being a leader. Our two greatest leaders were very tall: Washington and Lincoln. But you know what? It wasn't because they cast a shadow when they walked that made them great leaders. They both displayed the integrity, ethical strength and moral fiber to check their egos for the greater good.

Questions to pose to prospective clients

The other night, I was having beers with a Houston plaintiff's lawyer who was in town for depositions. We talk about clients on whose cases we pass. Here is his test. He asks the following two questions, back to back: 1. What did the employer tell you was the reason for your termination (or whatever adverse employment action is at issue? 2. What do you believe the reason or reasons were? These two questions and the consistency (or its lack) in the answers pry out, he tells me, the truth. Here is my system. I recall two quotes before I talk to a potential client: 1. Salespeople say the best sale they make is often the sale they did not make. 2. Mark Twain admonished that it is easier to stay out than to get out. I was talking to a potential client about drafting a noncompete for the employees of his company. He said his employees loved him, so he did not see why he needed one. Sure, he went on, he threw things at them, but they all worked in a creative industry and that was to be expected. Pass on the questionable potential client; life is too short.

Pre-emptive fitness-for-duty exams

Common sense won out in an ADA case from the 9th U.S. Circuit Court of Appeals. Here is how the 9th Circuit sketched it out in its July 27 opinion in Brownfield v. City of Yakima: A police officer, before he went on FMLA leave, exhibited odd behavior: swearing at a supervisor; leaving a meeting despite an order to stay; reporting that his legs were shaking at a traffic stop he conducted; having his wife call the police to report a domestic abuse incident; and saying to several co-workers, "It doesn't matter how this ends." The police department asked him to undergo a fitness-for-duty exam before returning from leave. He refused and was terminated. Among other claims, he said the request violated the ADA prohibition against such exams unless they are job related and consistent with business necessity. The 9th Circuit affirmed the trial court's grant of summary judgment for the employer. Here is what is interesting: The court asked whether such an exam could be given as a pre-emptive measure even before an employee's work performance declines? The answer: Yes. It was an issue of first impression for the 9th Circuit. If such a pro-employee court gives the green light, other courts will as well.

Beware the human tendency to see what you want to see

Have you ever watched the experiment in which the participants are told to watch a film where several people pass a basketball to one another? They are told to count the number of passes. After the film is over, the subjects are asked whether they saw a gorilla walk into the frame, pound his chest several times, and then walk off. Almost all say "No way! I would have noticed. I am too savvy to be fooled!" (By the way, that was much the response of yours truly.) But, sure enough, when the film is played again, there is the gorilla, big as life. I am reading a book from the two guys who devised the experiment, "The Invisible Gorilla: And Other Ways Our Intuitions Deceive Us" by Christopher Chabris and Daniel Simons. Their big idea: People often see what we expect to see, not what is really there. That may be what happened in July 9’s Casseus v. Verizon New York Inc.The U.S. District Court for the Eastern District of New York sketched out the facts: Employee takes FMLA leave. The employer is suspicious of the employee's veracity and has an investigator video him on the QT when he is on leave. The employer concludes that the employee was violating his medical restrictions and fires him. The employee sues for, among other things, an FMLA violation. The court rejected the employer's argument that it had a "good faith belief," based on the video, that the employee misrepresented his health status and thus that it should get summary judgment. Why? The video covered just a small part of the leave, and aspects of the video, in the court's view, were consistent with the employee's medical condition. This reminds me of a worker’s comp retaliation case I defended once. The employee went off on worker’s comp leave for his back. The suspicious employer videotaped him playing basketball and sent him a letter terminating his employment for violating his medical restrictions. But it turned out that his doctor told him to lose weight to help his back and encouraged him to do so by exercising. All the video ended up showing was that he didn't have a very good fade-away jumper.

4th Circuit issues pro-employee decision in sexual harassment case

What's the most conservative federal appellate court? I think it is the 4th U.S. Circuit Court of Appeals. When it came out with a pro-employee decision in a sexual harassment case — well, to borrow a phrase, "attention must be paid." Here's the down and the dirty from the court's opinion in Equal Employment Opportunity Commission v. Fairbrook Medical Clinic, P.A., decided June 18 .A physician owned a medical clinic. He liked to be a "shock jock" and said nasty stuff of a sexual nature in front of men and women. But he focused in on one female doctor who worked for him. She resigned and went to the EEOC, which took up her cause. The trial court granted summary judgment to the clinic, reasoning that crude jokes do not make a hostile environment. The clinic also argued that doctors deal with human bodies every day; off-color jokes are often used to break the tension of an awkward situation; and she continued to perform her job duties just fine despite the alleged harassment, thus her work environment was unaffected by the alleged harassment. The 4th Circuit made short work of the court's order and these arguments. First, it did not matter that he made offensive remarks to other employees. The only question is whether he used sex-specific and derogatory terms towards this doctor. The comments were highly personalized toward her and arguably were designed to humiliate and demean her because of her sex. Second, no profession gets an exemption from Title VII. The court: "We decline to accept the argument that a medical setting, because it deals with human anatomy is somehow liberated from professional norms." That's the court's way of saying, "Talk to the hand, Mr. Employer." Third — and a lot of courts get this wrong — the issue is not whether an employee can continue  to do a good job: "to work under difficult conditions is to her credit, not the harasser's.” The court notes that the key issue is not impairment of the plaintiff’s work but discriminatory alteration of her working conditions. Fourth, her occasional joking did not mean give him a green light to engage in "the sort of intensely personal and demeaning remarks that [he] allegedly directed at [her]." Shock jocks be warned.

Find the problem in the process, not the person

I just finished reading "The Art of Choosing" from Sheena Iyengar. She writes that in American culture, when something goes wrong at work, we look for the single cause, the responsible person, the one to hold accountable. By contrast, in Asian cultures, it is more common to look for a failure of a system or a process, not of an individual. I like that better. A worker may fasten a bolt incorrectly, an admin may misfile a letter, or a waiter may confuse an order, but always ask: Is it their fault, or is there a deeper systemic issue? Joseph Stalin famously remarked: "No person, no problem." Wrong. The person will be gone, but the problem will persist. Smart and ethical managers are mindful managers, looking for root causes not scapegoats. They look to themselves before they look to others.

How to spot a lie

I am very interested in cognitive theory and so really enjoyed reading “Liespotting: Proven Techniques  to Detect Deception" from Pamela Meyer. She tells us that a deceiver may do the following, often in close proximity: 1. Use a qualifying statement:" As far as I know" or "To tell you the truth." 2. Repeat back your question verbatim. 3. Dodge the question: "I already told that to HR." 4. Resort to religious references such as "I swear on the Bible." 5. Object to irrelevant to specifics: "No; I had the chicken, not the steak."
She also provides  lists of handy questions to help suss out untruthfulness:

• Ask in an investigation "What should happen to the person who is found guilty?" A guilty person will suggest lenient punishment or say "I don't know."
• Ask "Who do you think did the bad act?" A guilty person will not name names or try to broaden the universe. "It could be anyone in accounting."
• Ask the person to recall his story backwards, as in: And where were you before the meeting on Fourth Street?" A guilty person will have a hard time recalling details in reverse order.
• Ask the person how he thinks the investigation will turn out. A deceitful person will not be positive and might say, "I hope it will clear me. It should."

"Liespotting" is a well written and useful book. Ferreting out the truth is not always easy. The world is full of deceit. Yet it is valuable not just to be able to spot the deceivers but also the truth tellers. Let me tell you a story. I was a college junior. Organic chemistry was a course required for my degree. I was doing very badly. The professor called me into his office. Another professor was there. I was told that I had cheated on the exam. I had resubmitted an exam, as the professor allowed, and argued that I deserved points on a question. He said he had put my exam under an electronic microscope, and I had added information not on the original. My choice: Confess and I could stay in his class; don't and I would be kicked out. I refused and asked another professor to represent me. I was explicit with her: "I did not do this" — no equivocation, no "I hope this will clear me." She believed me, and it meant the world to me. She just knew I was telling the truth. She asked the chemistry professor to re-do his analysis. Guess what? He had done it incorrectly and admitted my innocence. I have never forgotten this. As lawyers, we deal with truth tellers and deceivers all the time. We must be attuned to both, question our assumptions and facts from whatever source (how could an electronic microscope be wrong, after all?), not bully people into quick but wrong decisions (or allow ourselves to be bullied), and listen carefully to those accused. A valuable lesson in life and in employment law.

7th Circuit to nursing home: No, customer preferences don't justify race-based job restrictions

It is 2010. Title VII was signed into law 46 summers ago in 1964. But on July 20 in Chaney v. Plainfield Healthcare Center, the 7th U.S. Circuit Court of Appeals had to issue an opinion that an employer can't use customer preference in making work-related decisions. The opinion set out the simple facts of the case: A nursing-home resident refused to allow a black nursing aide to assist her. The nursing home acceded in this request. The daily assignment sheet noted which residents black aides could not assist. After one of the black employees was fired, she sued, claiming a racially hostile work environment and wrongful termination. Incredibly, the trial court granted summary judgment to the employer. The 7th Circuit reversed, saying the claims had to go to the jury. The opinion notes that the employer argued it had to have the policy in order to spare its black employees from racial harassment -- sort of like in Vietnam, when the government famously remarked that a village had to be destroyed in order to save it. The appeals court said the employer had other options: Tell residents before they moved in of its nondiscrimination policy or tell employees they should ask for help from managers if exposed to a racially hostile environment. It is often easier to simply say that the "customer is always right" and move on. But what is simple is not always what is right.

2nd Circuit issues interesting opinion on sexually hostile environment

I recently read the 2nd U.S. Circuit Court of Appeals’ Aug. 13 opinion in Pucino v. Verizon Communications Inc. The court reversed a summary judgment granted to the employer is a sexually hostile environment case. In its opinion the court asked and answered three interesting questions:

1. Question No. 1: Does the alleged repeated use of the word "b----" alone create, as a matter of law, a sexually hostile work environment for a female employee? The court's answer: No. The court cautioned that use of the word must be examined in the context in which it is used. It will be up to a jury to decide if the repeated use of the word created a sexually hostile environment. Translation: Once a court says that any one factor creates a slam-dunk win for an employee, you get creative testimony slanted towards achieving the slam dunk.
2. Question No 2: Can a plaintiff use facially sex-neutral actions to establish a sexually hostile work environment? The court's answer: Yes. I am seeing more of this in the case law. The 2nd Circuit, in its opinion, said that if non-sex-based acts (here, the denial of overtime) are coupled with sex-based acts (here, calling the plaintiff a "b---"), the non-sex-based acts can support the finding of a sexually hostile work environment. Translation: This is the way the real, everyday world works. When a manager does not like someone because of their gender, he (or she) won't limit themselves to sex-based actions.
3. Question No. 3: Is a plaintiff's inability to recount each and every instance of sex-based actions fatal to her claim? The court's answer: No. The court held that testimony from a plaintiff that she was constantly harassed, and thus lost count of the number of times, is sufficient to support a claim of a sexually hostile work environment. So if the plaintiff can describe the nature of the harassment, she need not be able to recount each instance. The court noted that this is especially so where others corroborate her testimony. Translation: To impose a different burden would let a really bad actor escape.

So there you have it, two pro-employee rulings and one pro-employer one.

Management insight for one CEO: Sometimes it's about the people, not the facts

I really enjoyed the Corner Office interview in the Sunday, Aug. 8 issue of The New York Times. It featured fellow lawyer, now CEO, Sheila Lirio Marcelo. Her company is Care.com, and it helps people find health care, child care and other services. She says that early in her career she was promoted to vice president of a company but struggled. Her managers got her a coach, who helped teach her that management isn't always about the facts (she believes she got that notion from her legal training). Instead, it is about the people. The coach also trained her to start writing daily in a journal in order to get to know herself. The result: She turned her mind into an ally, not an enemy. Her hiring questions are perceptive. She doesn't ask what motivates an applicant, she asks them to describe their pet-peeves — in other words, what de-motivates them. Their answers give her a sense of their drive, their sense of culture and their fit with Care.com. Her company has no offices, just cubicles. In a move that would give most firms’ managing partners fits, she requires that all employees move their desks once a year. The purpose: "You sit with somebody from a different team so you get to know their job. What are they doing? . . . How do they tick? It's getting to know different people, so that we build a really big team." (If an applicant said hierarchy was a pet peeve, I think he or she would fit in well.) She also has lots of other interesting views, including on work/life fit. Take a read.