The Dark Side

Years ago when I worked at the EEOC, I sat chit-chatting with a plaintiff’s employment lawyer one afternoon at our monthly Plaintiff Employment Lawyer Association (PELA) luncheon.  She was exhausted, she explained, because she’d spent a week deposing employer witnesses in a gender discrimination, failure-to-promote case. “Well, how’d it go?” I asked, almost offhandedly. 

“Oh, great,” she replied. “I made the HR director cry.”

“Yuck,” I recoiled, “that can’t be good.”

“Of course it’s good,” she snapped. “She’s a stupid dirt-bag that should have gotten more involved to make sure my client got the promotions she clearly deserved . . . blah, blah, blah.”  

I’d grown accustomed to the rhetoric: the EEOC and PELA people did “God’s work” and helped “victims” of discrimination.  By contrast, employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability.    

After doing “God’s work” at the EEOC, however, I’d reached very different conclusions: (1) the people most ostensibly dedicated to improving the workplace make the worst employers; (2) in the most Machiavellian sense, rhetoric about “God’s work” and “changing hearts and minds through litigation” often just masks ego and greed; (3) the identity of the righteous “good guys” is seldom clear; (4) discrimination and an employer’s ability to disprove discrimination are two very different things.  Not surprisingly, when I left the EEOC to begin my employer-focused practice in 2000, my EEOC colleagues and the PELA people told me that I was joining the “Dark Side,” even the “Forces of Evil.” 

Boobs or Haters

In the victim/villain melodrama of discrimination litigation, the EEOC and PELA people cast (and treat) HR managers as incompetent boobs or raging racists.  After hours of intense deposition questioning, this treatment could make most HR practitioners cry, if not adequately prepared for such antics beforehand.  As a defense attorney, I’ve had to intervene in the most condescending, unconscionable bullying of HR practitioners and managers in depositions and investigations, all ostensibly in the name of vindicating another person’s rights.  But to the EEOC and employee-side counsel that perpetuate victim/villain paradigm, the inherent “evil” of discrimination justifies their abuse of other humans accused of it.  When you’re doing God’s work, after all, all is allowed.

This victim/villain dynamic also affects how they treat their colleagues on the defense side.  In an EEOC ADA prosecution I recently defended, EEOC counsel actually questioned whether I was a “good person” or “enlightened” for suggesting that that the public may not want to conduct retail/restaurant interactions in writing to accommodate one deaf/mute employee.  In a sexual harassment matter I just resolved, plaintiff’s counsel called me a “Clarence Thomas feminist” for articulating a well-supported consent defense in negotiations.  Last February, 2013, the President of Colorado’s trial lawyers association called me “hateful” and “anti-Islamic” for characterizing the victim/villain paradigm underlying HB-1136, which ratchets up damages against Colorado employers accused of discrimination or harassment, as an “ideological jihad.”  When you’re doing God’s work, after all, it is okay to demonize your opponent—we are bad, after all, even when we’re right.

Viewing the Victim/Villain Paradigm through the Lens of Profit and Fundamental Attribution Error

The “victim/villain” paradigm bears little resemblance to reality on the ground.  It endures, however, because it is so profitable financially and psychologically.  For many plaintiff employment lawyers, “victim” has become a euphemism for “client.” The “victim/villain” paradigm takes shape in the initial consultation, as attorneys steer employees toward claims and theories with the highest potential recovery—i.e., EEO claims.  Suddenly, the boss’s once-flattering comment about how Employee “looks darn good for her age” takes on a sinister bent, and begins to fuel the theory that boss’s sexist/ageist animus, not Employee’s subpar performance, caused her not to get that promotion. And then comes the casting: the employee as the hapless victim, the boss as the sexist/ageist jerk, the HR director as the incompetent boob, Plaintiff’s counsel as the righteous crusader, and defense counsel as an unenlightened hater. 

In social psychology, this phenomenon is called “fundamental attribution error,” which posits that in explaining human social behavior, we all have a tendency to overestimate the effect of disposition or personality and underestimate the effect of situation.  When explaining our own behavior, however, we humans focus completely on the effect of situation, not disposition or personality.  Read more here, http://en.wikipedia.org/wiki/Fundamental_attribution_error             

For example, imagine that you’re trying to make a left turn at a busy intersection.  Right before you begin your turn, a blue Buick races through the intersection, causing you to slam on your brakes to avoid a horrible t-bone wreck.  Be honest: like most of us, you probably would scream some version of “JERK”; after all, that inconsiderate jerk could have caused an accident!  But, what if blue Buick’s driver was actually rushing someone to the hospital? Or simply did not see you?  Chances are, if asked, blue Buick’s driver would explain the situation beneath the behavior, instead of saying “Well, I am an inconsiderate jerk.” We let ourselves off the hook by explaining the situation/circumstances prompting our behavior, while attributing others’ behavior to personality, character, and even morality. 

The victim/villain paradigm epitomizes fundamental attribution error: the boss declined to promote employee, not because of situational factors (e.g., better candidate, poor performance, skill deficit) but rather, because he’s an ageist/sexist jerk.  In employment discrimination litigation, the error enables Plaintiff’s counsel to explain an employment decision by focusing on character traits of decision-makers, rather than the complex constellation of circumstances underneath every employment decision (e.g., efforts to rehabilitate, skillset needed, impact on other employees).  The recent Paula Deen raced-based employment discrimination litigation illustrates the point well.  At her deposition, Plaintiff’s counsel asked if she had ever used the N-word.  She admitted she had, and then described the context—i.e., something about being robbed at gunpoint by an employee she’d once hired.  “Ah-ha, see there,” smirked the employee-side lawyers, our victim-client must have suffered a racially discriminatory employment action because Paula Deen is a racist, a bad person.  When the situational facts came out, however, the judge determined that Paula Deen’s accusers could not even muster enough evidence of a racially discriminatory employment decision to reach a jury. 

Squandering Chances to Build on Shared Values

The worst part of the victim/villain paradigm, aside from its psychological distortions, is that it squanders opportunities to build on shared values: e.g., the importance of workplace inclusiveness, consistency, fairness, personal accountability, and financial viability to support JOBS.  The overwhelming majority of HR practitioners also care deeply about equal employment opportunity, and work hard on the inside to ensure that personnel actions consider all the angles of an expanding web of employment regulation.  Instead of misanthropic villains, HR practitioners act more like high school principals, maybe even corporate social workers, endeavoring to ensure that everyday “people problems” do not become legal ones.  More often than not, they’re the good guys.

Until we come to terms with how ineffective the privatized civil rights enforcement model has been in fulfilling Title VII’s promises, however, the victim/villain paradigm will stick around for a while longer.  In the meantime, the HR and employer community must re-claim their “good guy” status by

(1) creating and filling JOBS;

(2) remaining updated and vigilant about EEO compliance issues;

(3) documenting their good faith compliance efforts and employee interactions; and,

(4) investing in their own diversity/inclusiveness initiatives, in order to reap the business benefits of inclusive decision-making. 

In theory, the EEOC, employers, civil rights groups, and the HR community share much common ground in advancing equal employment opportunity, but for a victim/villain model made by attorneys, for the benefit of attorneys.  Employment discrimination, workplace inclusiveness, and the costs to employers of EEO disputes are complex, multi-faceted social problems that deserve more analysis than victim/villain caricatures.  Our progress toward full inclusiveness, after all, depends our ability to find common ground, not deepen divides.