Work Matters

A question defense lawyers always should ask in voir dire

In voir dire, a defense lawyer always should ask the venire whether it is more important to them as potential jury members to follow their personal ethics or to follow the law. Sometimes lawyers ask it this way: Is it more important to follow the spirit of the law or the letter of the law? An attorney can get a sense of the answer’s importance by asking whether the potential juror feels very strongly, strongly or neutral about his or her answer. These types of questions flush out those potential jurors who will engage in juror nullification, deciding a case based on their predilections rather than on the evidence and the jury instructions. This post comes with a caveat: A defense lawyer in an employment case never will be able to weed out all jurors who will follow their personal ethics. There are too many. But the defense can weed out the most dangerous.

Use Stoic philosophy to handle life and law practice

What is the best way to get the most out of ourselves or others? One powerful way is the way of the Stoic, as illuminated by William B. Irvine in "A Guide to the Good Life: The Ancient Art of Stoic Joy." He tells readers that the foundation of Stoic philosophy is to concentrate only on what we can control. Period. We cannot control the actions of others or the vagaries of life. So, do not set a goal of winning the tennis match. Set the goal of doing your best. He writes that a focus on winning may make it less likely that we win: "If it starts looking, early on, as though we are going to lose the match, we might become flustered, and this might negatively affect our playing in the remainder of the game. . . ." So, lawyers should work in the moment and be in the moment. Internalize your goals; do not externalize them. Irvine applies this to relationships. (This is a full-service blog). He writes that in a relationship the goal is not to make the other love you. No, the goal is to be lovable. Again, focus on what we can control, not on what we cannot.

Court issues first Texas ruling on the ADA Amendments Act of 2008 and EEOC final regulations and guidance

On May 13 in Norton v. Assisted Living Concepts Inc., the U.S. District Court for the Eastern District of Texas in Sherman became the first court in Texas to interpret the Americans With Disabilities Act Amendments Act of 2008 and the EEOC final regulations and guidance that becomes effective May 24. The court's opinion denying the employer's motion for summary judgment on the disability claim is instructive. The court sketched it out: An employee was diagnosed with a cancerous tumor on his left kidney in April 2009. He took off for surgery, returned to work on July 1, 2009, and was fired on August 5, 2009. He sued for disability discrimination. The employer said he was fired for poor performance. The employer moved for partial summary judgment, arguing that he did not have a disability. The court rejected the argument. First, the court noted that Congress made clear in the ADAAA that it intended disability to have a broad and expansive meaning. Second, the court said that it did not matter if the plaintiff's cancer was in remission. Third — and here is the big difference between the old ADA and the amendments — there is a disability even if the only major life activity the condition substantially limits is something very narrow, such as normal cell growth. Previously, to qualify as a disability, a plaintiff had to show that the impairment made him unable to function on a daily basis. The plaintiff could have a terrible condition, but if he could get up in the morning, brush his teeth and drive to work, he was not disabled under the law. All of this is important, but here is something equally important: The plaintiff invoked a new federal rule of procedure, effective Dec. 1, 2010, providing that a litigant can ask the court, on the court's own initiative, to grant summary judgment on a legal issue. The plaintiff did just that, asking the court to hold, as a matter of law, that the renal cancer is a disability. No briefing, just a request. The court granted the request and asked the employer to respond as to why the court should not grant a summary judgment on the issue of disability. I believe this case is an indicator of more of what we will see in ADAAA cases. Get ready.

To improve ethical decision-making, ask "What would mom do?"

I hope you enjoyed Mother's Day. I spent most of the day finishing "Blind Spots: Why We Fail To Do What's Right And What To Do About It" from Max H. Bazerman and Ann E. Tenbrunsel. To help make ethical decisions, they advocate using "mom's litmus test." When confronted with an ethical dilemma, ask yourself whether you would feel comfortable telling your mom, "Guess what, mom? I lied about having another salary offer to get the job." According to the authors, imagining mom's reaction focuses people on the abstract principles that guide ethical decision-making and brings those principles to the forefront (WWMD: "What would mom do?"). And, once at the forefront of our minds, these abstract principles enhance our "should" self (the angel whispering in our ear to do the right thing) and put a damper on our "want" self (the devil whispering in our other ear to do the wrong thing). My mom taught me a lot. Here is a link to a column I wrote about her.

ADA amendments means suits that would have been dismissed will get to a jury

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) is working its way through the courts. Things do not look good for employers. Suits once tossed as a matter of course now will get to a jury. Look at Lowe v. American Eurocopter, LLC, a December 2010 case from the Northern District of Mississippi. Here is how the court sketched out the facts in denying a Federal Rule of Civil Procedure 12(b)(6) motion. Yolanda Lowe sued under the ADAAA, claiming that she was terminated because of her disability: obesity. Rule 12(b)(6) motion denied. The court remarked that, before the amendments, obesity only would be a disability in "rare circumstances"(quoting then-existing EEOC guidance). But after the amendments, obesity is a disability. All the plaintiff needed to say, as she did in her complaint, was that her weight was such that it substantially affected her in the major life activity of walking. Presto, she’s now an ADAAA-covered person. Interesting, but there is more. She also claimed that her employer "regarded" her as having a disability. To survive a motion to dismiss on this type of claim before the amendments, the court noted she would have needed to allege that her employer believed, albeit erroneously, that her condition substantially limited her in performing a major life function. No more. Here is the court: "Under the ADAAA, an individual is now not required to demonstrate that the disability she is regarded as having is an actual qualified disability under the ADA or that it substantially limits a major life activity. The ADAAA requires a plaintiff to only show that ‘he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.’ Thus, a plaintiff now might be considered disabled due to obesity under the ADA if her employer perceived her weight as an impairment." The genie is out of the bottle. Employees with any kind of impairment now can sue if they merely can show that they had an impairment and the employer took action against them because of it. In the ADAAA, Congress cut the brakes embedded in the previous law. Crashes are imminent.

Avoid idiot compassion, and don't be nice

Beware "idiot compassion" at work. This is a Buddhist idea described by Michael Carroll in "Awake At Work: 35 Practical Buddhist Principles for Discovering Clarity and Balance in the Midst of Work's Chaos." He observes that helping colleagues at work is neither simple nor easy. In truth, people are not always well equipped to give effective help, and trying to do so often leads to a greater mess than if they had let things alone. Carroll writes that avoiding idiot compassion means pausing “to consider what is truly needed when helping others — that rather than jumping to solutions or rushing to the rescue, we can be discerning and deliberate in our efforts." So how to avoid idiot compassion and replace it with smart compassion? I think part of the answer is in Peter Bregman's insightful March 16 post on the Harvard Business Review blog, "Don't Be Nice; Be Helpful." Here is his advice before offering counsel to a colleague:

1. Ask permission. A simple question, "Can I share some feedback with you?" often opens up communication.
2. Do not hedge. Put another way, do not sandwich criticism between two compliments. Otherwise the message will be lost.
3. Do it often. If a company takes this approach on a regular basis, it creates what I call a culture of candor. If so, feedback becomes the norm, not the outlier, and something that is welcome, not shunned.

I have written on compassion before. As I explain, well-placed compassion is useful, effective, and good business. Embrace thoughtful compassion, eschew idiot compassion.

The role of outcomes in assessing whether conduct is unethical

Ethical issues interest me, especially regarding how good people go bad. So I read with interest "Ethical Breakdowns," an article in the April issue of the Harvard Business Review. Max H. Bazerman and Ann E. Tenbrunsel tell readers that one way to stumble into unethical conduct is by overvaluing outcomes. They told Group A that a researcher, in submitting a drug application, included data points earlier tossed out on a technicality. The drug was approved, and people who took it died. In Group B, the researcher faked the data points, the drug was approved and was a success. Listen to what they found: "After participants read one or the other story, we asked them, ‘How unethical do you view the researcher to be?’ Those who read story A were much more critical than those who read story B, and felt that he should be punished more harshly. Yet as we see it, the researcher's behavior was more unethical in story B than story A. And that is how other study participants saw it when we removed (the outcome) from each story." Their conclusion: "Managers can make the same kind of judgment mistake, overlooking unethical behaviors when outcomes are good and unconsciously helping to undermine the ethicality of their organizations." So they suggest that managers should be aware of this bias, “examine the behaviors that drive good outcomes, and reward quality decisions, not just results." It is not just how people -- lawyers included -- get to where they want to be, but how they get there. The entire issue of the magazine deals with failure. I highly recommend it.