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August 24, 2006

Read These Books -- And Sue Every Boss In Sight

[Originally appeared in the Baltimore Sun, Feb. 16, 1997]

Furious at your high-handed boss? A generation ago you might have called a union organizer, but now you’re likelier to dial 1-800-LAWSUIT. From Mitsubishi to Texaco to the guy down the hall who put in an age-bias claim after getting downsized, lawyers and threats to sue have been fast supplanting unions and threats to strike as the prime movers of workplace conflict in this country.

The shift is reflected at the bookstore, where for every volume on collective bargaining you can find a half dozen aimed at disgruntled individual workers with titles like Your Rights in the Workplace by Marcia Stewart and Barbara Kate Repa (Nolo Press, 1996), The Employee Strikes Back! by Brian Zevnik and John Rapoport (Macmillan, 1994), and Can They Do That? A Guide to Your Rights on the Job by Michael A. Zigarelli (Lexington, 1994).

I read a sackful of these self-help volumes in the course of researching a forthcoming book on the new employment law and how it’s transforming the American workplace. Most were reasonably well-written and accurate, if also somewhat single-minded in nurturing among readers a bristly assertiveness about their rights. But they also made clear, sometimes with inadvertent humor, that the influx of lawyering into the nation’s offices and plants is making America a more contentious place in which to go about our daily work, which spells bad news for employers and quite possibly for the rest of us as well.

Attorney E. Richard Larson minces no words in his book’s title: Sue Your Boss (Farrar, Straus & Giroux, 1981). Larson tells workers who’ve been fired, passed over for promotion, or otherwise aggrieved that newly enacted laws are "very much in your favor" and just "waiting to be used". "Vast sums" can be on the table, he adds, just in case any readers have been dozing off. "Money -- lots of it -- has been changing hands."

How to get some? To begin with, says Larson, you "always should assert your rights under as many of the laws as are available." Each separate claim gives the employer something else to sweat over and pay its lawyers for, and what with this country’s lack of a loser-pays rule there’s no penalty if you’re wrong on one (or for that matter all) of them. If you fall into more than one protected-group category -- race, sex, age -- Larson advises throwing in a claim for each, whether or not you’ve seen actual evidence of bias: "there is no reason to give your employer the benefit of any doubt. Instead, assume the worst."

Most of these martial-arts-meets-the-human-resources-department volumes broadly resemble each other in format. Their drawback as a publishing proposition is that they date so quickly, falling out of print (like Larson’s), or requiring updated editions as the law relentlessly expands through such enactments as the Americans with Disabilities Act of 1990, the Civil Rights Restoration Act of 1991, the Family and Medical Leave Act, and so forth. Maybe at some point trade publishers will emulate the professional law-book houses which address this problem by publishing in looseleaf format or with kangaroo-like "pocket parts" in back for new developments.

As the manuals make clear, the law in practice is not the law as it may look on the page. Academic writers on sexual harassment split hairs about the difference between consulting a "reasonable woman" and a "reasonable person" in deciding what jokes or comments are permissible in the workplace. Ellen Bravo and Ellen Cassedy in the 9 to 5 Guide to Combating Sexual Harassment (Wiley, 1992) are blunter and more practical. "Who decides what behavior is offensive in the workplace?" they ask. "The recipient does." They advise potential offendees to "trust your instincts" about what constitutes harassment.

Thorough if not obsessive documentation is a common theme. One author suggests starting a file every time you take a new job and saving in it every scrap of paper the company ever gives you. "The one with the biggest pile of papers wins," writes Lewin G. Joel III in Every Employee’s Guide to the Law (Pantheon, 1993). What if co-workers make, say, "wisecracks about your age"? "Don’t wait until you get home from work. As soon as you are alone and have a chance to write them down, do it. Go to the rest room if you have to. Remember to bring a pencil." Take notes on supervisors’ remarks "even at a chance meeting at a ballgame or nightclub".

If relations with your boss weren’t tense already, they may get that way before long. Some authors propose that you insist on a written job description and formal performance reviews even if your company doesn’t normally follow either practice, and demand at frequent intervals to inspect the contents of your personnel file. "If you were made uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them -- or at least make copies," write William Petrocelli and Barbara Kate Repa in Sexual Harassment on the Job (Nolo Press, 1992). Bravo and Cassedy suggest objecting to offensive goings-on in "any tone that feels right to you". (Sample wording: "If you touch me/talk to me that way one more time, I’ll report you so fast you won’t know what hit you.").

Nearly all the manuals are written by practicing employment lawyers, and after a while it becomes clear that many of them have a product to sell. "_Talk to an attorney early_", advises Darien McWhirter in Your Rights at Work (Wiley, 1989) [emphasis in original]. "...Many employees could avoid throwing their cases away if they would talk to an attorney before doing something stupid, like resigning or admitting guilt." (Admit guilt? What a dumb move!). Every Employee’s Guide to the Law, one of the livelier volumes and one of the franker in boosting litigation, tells of "a jury award out there with your name on it."

The assert-your-rights manuals are rather skimpy, however, on warning readers of the costs of a decision to get into a fight with their employers. A leading study of litigation by university professors found most who sued suffered lasting harm to "their finances; their relationships with family, friends, and colleagues; their attitudes toward lawyers and the legal process in general; and most of all their careers." Yes, there are often tempting short-term settlements to be had, shared with one’s lawyer; but they may come at a future price part of which is paid when other employers think twice about an applicant who’s shown a willingness to sue.

Then there’s the lawsuit itself, which participants often compare to an especially nasty divorce. To see this side of the process one does well to turn to real-life accounts. One of the most absorbing comes in Nan Robertson’s history of women at the New York Times, The Girls in the Balcony (Random House, 1992). The paper was targeted by an early landmark sex-bias case for paying less to female than to male employees. Robertson strongly sympathizes with the lawsuit’s aims, but recounts its events with palpable ambivalence. Waging a lawsuit against one’s employer is a "long, slow, painful, difficult, and ego-destroying process", said attorney Harriet Rabb, who represented the women employees. Grueling depositions, unmerciful invasions of both sides’ privacy, and staggering expenses helped turn the atmosphere at the paper "poisonous". The thought of going to trial "scared the socks off" both Rabb and her opposite number, Times lawyer Kathy Darrow: "We knew that people were going to get up on that stand and say terrible things about each other in public," said Darrow. "....Even taking the depositions, people cried, people were devastated, and there was nobody there but the lawyers to hear them."

If it were up to me, I’d tuck a story like that into the back of all the enthusiastic how-to-sue manuals, where it would make a much-needed "pocket part".

January 3, 2006

Meddlers won't quit

[Originally appeared in USA Today, November 17, 1997, as "Opposing View" to USA Today's editorial].

Fresh from its push to protect mental illness in the workplace, the Equal Employment Opportunity Commission (EEOC) is back with its next social-engineering venture: arm-twisting pay parity between men's and women's coaches. The likely results? More outside meddling in college sports and worsening of the current Title IX disaster for such sports as men's track, wrestling and diving.

News flash: Women are different from men. College football is a huge business, and it won't have a female equivalent as long as women are free to avoid it. Extremes of physical competition don't play the same role in women's lives as in men's.

Yet Brown University got rebuffed when it defended its small excess of male varsity positions by noting that men were more likely to try out for teams. After higher-ups settled a lawsuit by accepting varsity quotas, Cal State Northridge this June proposed dropping men's baseball, soccer, swimming and volleyball. Title IX-driven cuts have devastated "nonrevenue" men's sports, with gymnastics teams, which numbered 133 in 1975, down to 32 today.

After a token concession that not every volleyball coach may be entitled to the pay of a Big Ten football wizard, the new EEOC guidelines start in with the bad news. Comparisons between dissimilar sports? No problem. Offers based on market rates or current pay levels will be suspect: "Cultural and social factors may have artificially inflated men's coaches' salaries."

Worse, the EEOC hints that women's coaches should win even if their programs are revenue washouts -- in one famous case, the USC men's basketball program brought in 90 times as much revenue as the women's -- if colleges didn't advertise and promote their squads as heavily as the men's, though to hype a fanless team may be to throw good money after bad. In a typical stroke of micromanagement, the agency suggests a college may lose if it "sets up weekly media interviews" for a red-hot men's team but not its languishing female equivalent.

Washington flexes its muscles. What keeps on atrophying is freedom.

Age-bias law backfires on boomers

[Originally appeared in USA Today, August 26, 1997]

Britain’s new Labor government has vowed to introduce a law that would forbid U.K. employers from discriminating against older workers, along the lines of this country’s Age Discrimination in Employment Act. Such a bill would ban the custom of automatic retirement from a company at 65 or any other age, as we’ve banned it here. “The employers in the U.S. can cope with the so-called cost burden, so why can’t we?” said Lawrence Davies, a British lawyer pressing for the change. “It seems to me that the U.S. is thirty years ahead of us.”

Memo to Prime Minister Tony Blair: don’t rush into this.

From across the Atlantic, age-bias law may look simple and straightforward. American politicians endorse it almost unanimously with a nod to the powerful American Association of Retired Persons. Big employers emit few protests. There’s a vague sense that anyone remaining skeptical must be in some way hostile to the elderly -- much as anyone dubious about covering the disabled, gays or people with accents with bias laws is thought to be somehow against those groups.

But there’s a problem: signs are mounting that this law makes things worse for many of the workers it’s meant to help.

And there are more of them than you think. Most baby boomers, those over 40, are “protected” by these laws.

Originally passed by Congress in 1967 and toughened since then, the age-discrimination law was supposed to help older workers stay at their jobs longer, bring their talents renewed respect at the workplace, and put in their own hands the timing of their retirement decision. The opposite has happened on every front.

There’s widespread evidence that older workers are losing relative ground in hiring. The federal Bureau of Labor Statistics observes that they face “greater labor market difficulties” than younger colleagues when displaced from an old job.

Rates of full-time employment for older men have dropped, not risen, since the law came in.

Big employers increasingly prune their payrolls via “buyout” offers targeted at older employees. So far has this process gone that in some lines of work, being bought out now begins to seem like the normal way to end a career. But buyouts tend to flush longtime workers out of their jobs earlier, not later, than they would have departed under the old system.

Morale has plunged for veteran workers, who feel less welcome. For example, firms have quietly but steadily done away with the awards and ceremonies by which they used to honor milestones such as 20 or 25 years of service.

Are all these developments mere coincidence? Almost everything but the law gets blamed. “Older employees are perceived as less flexible and adaptable,” says an AARP analyst, while a Washington Post report cites such possible hurdles as “unfamiliarity with changing technologies; a lack of networking and interviewing skills; not knowing the latest way to effectively write or circulate a resume,” and so forth. But most of these problems have been there all along. Why should they have gotten worse?

Consider another possibility: Older applicants now pose a heightened legal danger to employers. If they don’t work out, or if advancing age soon takes a toll on their ability, they may require an expensive buyout. Simply firing them is a recipe for getting a lawsuit: and employers see age cases as “the most dangerous type of discrimination case to take to trial,” reports the Employee Relations Law Journal. Lawsuits over age bring much higher payoffs than those over race or sex, thanks in part to the virtually automatic doubling of damages. (Result: the juiciest monetary rewards of bias law -- in verdicts, settlements and buyouts -- go to middle-aged white males, especially those in executive and managerial posts. Did someone say ironic?)

Of course, no individual employer would admit to tilting against older job applicants; that would be legally suicidal, since hiring bias remains flatly unlawful. And since backers of age-bias law aren’t eager to have people think their pet cause has backfired, there’s a sort of community of interest in downplaying the problem.

One obvious comeback is that if employers are reluctant to hire older workers because of the perceived legal hazards, the answer is to crack down on them by taking them to court. Easier said than done: as long as managers have not let slip interview questions, stray remarks or jotted notes that a clever lawyer can in some way link to matters of age, it’s quite hard for any single applicant to make a case.

The other possibility would be to ask courts to scrutinize overall hiring numbers, which is exactly what we let them do in the case of the hiring of minorities and women, and which does indeed provide a definite incentive -- for better or worse -- for employers to hire members of those groups to stay out of trouble. But no one has the stomach to push quota pressure for older job applicants. It’s just too obvious that in no world this side of the absurd would, say, over-55s get hired proportionally as lifeguards, bicycle messengers and MTV announcers. So today’s older job applicant gets the worst of both worlds: legally hazardous to hire but not especially hazardous to turn away in the first place.

So what do older workers get from our new system? Well, you might say, they get lucrative buyouts. Yet no rational worker would ever have designed today’s buyout plan on purpose as a fringe benefit. Because companies typically spring offers as a surprise, they keep workers not knowing when they’ll retire, thus unable to plan their futures. Buyouts also dish out cash windfalls unevenly and unfairly among equally deserving employees. (Workers who are highly paid in the first place are most likely to bag generous sums, while most blue-collar laborers can expect no buyouts at all.)

Even well-off professionals, the ones most likely to pocket early retirement offers, can hardly expect a free lunch. At some point employers must begin factoring the cost of eventual buyouts into their calculations how much to pay such workers in the first place.

“Despite all the age-discrimination laws,” observed the normally shrewd Forbes in June, “employers are often motivated to get rid of older workers.” Despite? Try “because of”. Before Britain heads down the same path, it might want to take a hard look at the unintended consequences of our experiment.

November 23, 2005

Table of Contents, The Excuse Factory

Introduction

TENURE TRACK

1. Hiring Hell

2. Tenure Track [decline of employment at will]

3. All Protected Now [expansion of discrimination law][related articles]

4. Fear of Flirting [related articles]

THE AGE OF ACCOMMODATION

5. Mistaken Identity [disabled-rights movement]

6. The Age of Accommodation [related articles]

7. Accommodating Demons [legal protection for alcoholism, drug abuse, mental illness][excerpt: Washington Monthly]

8. Surprise Farewells [age discrimination, retirement and buyouts] [related
article: USA Today
]

THE EXCUSE FACTORY

9. The Excuse Factory

10. Dropping the Stretcher [legal assault on employee testing; safety
implications]

11. The New Meaning of Competence

KID GLOVES AND BRASS KNUCKLES

12. Kid Gloves and Brass Knuckles [high personal costs of litigation process; retaliation law][related article: Baltimore Sun]

13. Why Business Will Miss Unions

14. Workplace Cleansing ["hostile-environment" prevention, advanced level]

THE TERMS OF COOPERATION

15. Our Scofflaw Bosses [why no one actually complies] [excerpt: Reason]

16. Secure in What?

17. The Terms of Cooperation

***

The Excuse Factory: review highlights

Back to The Excuse Factory page

Reviews of The Excuse Factory

The Excuse Factory was published by The Free Press, a division of Simon & Schuster, in the summer of 1997. Some review highlights (courtesy, in part, of Writers' Reps):

"Engaging, witty and provocative...a comprehensive examination of the unintended consequences of our ever-expanding network of well-intentioned employment laws....appears destined to have as much impact as his controversial 1991 polemic against plaintiff’s lawyers, The Litigation Explosion." -- Roger Parloff, The American Lawyer

Continue reading "Reviews of The Excuse Factory" »

The Excuse Factory

The Excuse Factory: How Employment Law Is Paralyzing the American Workplace (Free Press, 1997) was the first popular book to take a broad critical look at the revolution in American workplace law that had taken place over the previous generation.

Here's an annotated table of contents.

Review highlights are here. Highlight of the publicity: a three-page profile in People (August 11, 1997). The book won a Sir Antony Fisher Memorial Award, bestowed annually by the Atlas Foundation, and was a main selection at both Laissez-Faire Books and the Conservative Book Club.

Online excerpts from the book or pieces based on it include my Reason magazine cover story on how employers never really succeed in complying with today's employment law; the Cato Policy Report cover story based on a speech I gave before the Cato Institute; a USA Today opinion piece on the surprising effects of age-bias law in discouraging hiring of older workers; and a Washington Monthly excerpt telling the story of how alcoholism became a legally protected category in the workplace like race or religion. (My article on the collision course between the Americans with Disabilities Act and workplace safety is no longer online at the Detroit News.) I've also published articles on the unintended effects of the law in bestowing rights on half-blind pilots, addicted doctors who swipe their patients' narcotics, mentally ill grade-school teachers, aspiring golfers who want the game's rules changed on their behalf, and would-be lawyers with learning disability who demand extra time on the bar exam.

Broadcast and speaking appearances. My speaking tour took me from Harvard to San Diego, Seton Hall to Oklahoma City -- at least two dozen campuses so far and more than fifty professional gatherings, including the annual conventions of both the American Bar Association and Association of Trial Lawyers of America (really).

Buy The Excuse Factory

***

For further reading:

My Reason column for December 1998 pulled together some of the more amusing employment-law stories there wasn't room to include in the book ("Dial 'O' for Outrage"), while my roundup review of self-help books for disgruntled employees, a genre I got to know quite well while researching The Excuse Factory, appeared in the Baltimore Sun.

For more on employment-law themes, consult this site's directory of online writings by topic where you will find such categories as discrimination law. In the magazine Reason, where I wrote a monthly column for several years beginning in 1997, are columns on the federal government's baffling crusade against "accent discrimination", its abortive attempt to impose safety rules on home offices, its hints that criminal records may in some circumstances count as a protected category against discrimination, and its effort to unleash entrapment-informers -- sorry, the preferred term is "testers"
-- to generate complaints against hapless employers by posing falsely as job applicants.

My websites Point Of Law and Overlawyered both carry a steady stream of commentary on employment law issues. Point of Law has a page dedicated to that topic, while Overlawyered has pages devoted to employment law generally, harassment law and disabled-rights law.

Punch the Clock, Sue the Boss

[Published in the New York Times, March 20, 1998]

Short of appointing Catharine MacKinnon Attorney General, it's hard to know what more Bill Clinton could have done to encourage the current state of harassment law.

Continue reading "Punch the Clock, Sue the Boss" »

November 22, 2005

Time to Get Off the Tenure Track

Published New York Times, July 8, 1997

Last month The Florida Times-Union of Jacksonville reported on the case of a local teacher who officials said had gotten into repeated book-throwing brawls with her students. In rambling letters, the teacher told the authorities that evil spirits had invaded her students' eyes; later she changed her last name to "God."

Continue reading "Time to Get Off the Tenure Track" »