Lessons From Plaintiffs University

Alan Rupe (/authors/421-alan-rupe/articles)

December 6, 2007
I know its out there somewhere: Plaintiffs University. The curriculum includes such classes
as "Mastering Passive-Aggressive BehaviorPushing Your Supervisor Over the Edge,"
"EntitlementHow to Get Rich Without Really Working" and "Honest, No One Ever Told
Me: A Guide to Avoiding Termination."
In my 30-plus years of defending employers, Im sure I have deposed and cross-
examined most of this universitys alumni. The existence of PU is proved through the refrain
universally heard in employment cases: "I read the policy, I acknowledged I read the policy,
but I didnt understand the policy and I was afraid to follow it even if I understood it."
It is a mystery to me how someone smart enough to get through school (grad school, in
some cases), apply for a job, get a job, understand the basics of employment law and civil
procedure and find a generally competent plaintiffs lawyer is unable to read and understand
an employers most basic rules: "We do not tolerate harassment. All harassment must be
reported promptly. We will not retaliate against employees who complain."
It is imperative for the employer to have an "adequate complaint machinery" to avoid
liability for harassment and discrimination under Title VII. But employees trained at PU
invariably dodge their responsibility for prompt reporting of harassment by framing their lack
of understanding of the policy in such a way that their failure to complain somehow
becomes reasonable. Here are some of my favorite excuses:
"I signed a whole bunch of paper when I started working, but I didnt read any of it
because the supervisor wanted me to begin work immediately."
"I did not read it, I just signed it in order to get the job and I had to have the job."
"The company gave me a copy of the policy, but I had no idea where to complain if
there were problems."
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"I read the policy and signed it, but I didnt understand what it meant."
And heres some typical deposition testimony by a PU alum in a harassment lawsuit:
Q. Did you ever report the incident in which Mr. Harasser rubbed himself
against your backside?
A. No, I didnt.
Q. Why didnt you?
A. I really didnt think anything would be done about it.
Q. Were you aware the company has a sexual harassment policy?
A. I know they had a little book.
Q. Did you know if the policy prohibited sexual harassment and retaliation
for complaining?
A. No, I did not know that.
Q. When you started your employment, did you receive any type of
training on sexual harassment?
A. I was given something called a code of conduct.
Q. Did you ever sit down with anyone at the company and talk about what
constitutes sexual harassment?
A. I dont believe I did.
Q. At some point did you become aware there was an 800 number you
could call to complain about harassment or retaliation?
A. I do remember people talking about it, but there was a lot of paper posted
everywhere and I cant say I read everything.
Q. Did you have an understanding as to what the 800 number was for?
A. As I remember, it was for reporting safety issues. Or something like that.
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An employees ability to disclaim knowledge and understanding of an employers
harassment and reporting procedures boosts his/her chances of a successful lawsuit in any
number of employment claims, including sexual harassment, implied contract cases,
retaliatory discharge, employment contract cases where "for cause" is an issue, and in
unemployment claims where breach of a duty owed an employer is frequently center stage.
Sometimes, employers (such as the Wisconsin defendant/employer named in a very
recent case involving a restaurant supervisors harassment of and retaliation against a 16-
year old high school student) have a special class of workers who may have
understandable difficulty understanding the companys policies.
In EEOC v. V&J Foods, Inc., the 7th Circuit Court of Appeals noted that the "complaint
machinery" must be reasonable and "what is reasonable depends on the employment
circumstances and on the capabilities of the class of employees in question. If they
cannot speak English, explaining the complaint procedure to them only in English would not
be reasonable."
The court noted that while employers are not required to tailor complaint procedures to
the competence of each individual employee, the company in this case, (which hired large
numbers of part-time teenage workers), was "obligated to suit its procedures to the
understanding of the average teenager."
The court criticized the company for adopting complaint procedures "likely to confuse
even adult employees" (EEOC v. V&J Foods, Inc., 7th Circuit, 11/7/07). The court also
chided V&J defense counsel who tried to take the position that a policy understood by a 40-
year-old worker could be understood by an entry-level 16-year-old. The court wrote, "[I]t
would cost very little, certainly for a company of V&Js size, to create a clear path for
complaints of harassment," and "V&G has presented no evidence at all about the cost of
adopting and administering an effective complaint machinery."
So heres my holiday gift to employers. Its simple, its inexpensive and it works:
Develop a clear, unambiguous anti-harassment, anti-discrimination and anti-retaliation
policy. Write it to the level of a 16-year-old accustomed to staring at video games and
shopping at the local mall.
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Prepare an acknowledgement to be signed by every employee, acknowledging they
have read and understand the companys policies. The operative word is
"understand."
Put together a "drivers license" test that quizzes employees on the significant points
of the policy and give the test to new employees as part of orientation. The test can be
as simple or elaborate as you like (a typed question-and-answer format with the
employees handwritten answersjust like high schoolor an interactive computer
program), but test the employees knowledge. If the employee has wrong answers, go
over the policies again and test again. And again. And again, if necessary, so no one
can ever say (well, they might say it, but Ill defend that case any day), "I didnt
understand."
Enjoy your gift of a liability-free 2008! Happy holidays!
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