When the Paper Trail Turns into a Paper Chase
BY RICARDO R. GRANDERSON

The author, a New York attorney, heads the Granderson Group in Brooklyn, N.Y., a human resources consulting firm that focuses on resolving workplace harassment issues.

There invariably will be workplace conflicts as firms grow and become more diverse. Human beings' intrinsically discordant nature, coupled with the litigious tendencies of some, and the passage of empowering legislation like Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990, and others, has created a volatile claim environment. Legislative changes coupled with high damages awards and lofty settlements has empowered and emboldened employees.

According to the U.S. Equal Employment Opportunity Commission, there has been a surge of charges and lawsuits concerning religious and racial discrimination. Moreover, the New York State Division on Human Rights indicates that employment complaints accounted for 91% of all complaints filed in 2001.

It is an unfortunate workplace reality that in-house legal staffs and human resources at best can only react to workplace claims--as opposed to proactively investigating potential problems. Moreover, human resources and legal departments also are limited by the communications and information presented by management, which is often incomplete.

They also are burdened by an intrinsic bias against the employee--that is, those personal and professional relationships that invariably form between management, the lawyers, and the human resources staffers. As a result of this bias, employees invariably eschew the workplace when seeking redress. The result is an exponential proliferation of suits, agency charges and complaints.

Embedded within the emotional and legal complexities of an employment practice claim is management's responsibility to gather, organize and produce documentation which, purportedly, serves as the basis for termination. What further obfuscates this responsibility is the paradox of the at-will-doctrine, which theoretically does not require any proffer of documentation as an antecedent to termination.

As courts have found creative ways of carving away at the doctrine, the theoretical elements have become more practical, if not required. The real issue is that management, even with counsel's assistance, is invariably overcome by the Pavlovian compulsion to "manufacture" a basis for termination when the purported basis is invokes the at will doctrine.

In many cases, the triggering event for an employment discrimination claim is the often-mandated "warning letter," sometimes referred to as a performance improvement plan, which delineates the employee's transgressions and establishes a 30-to-60 day period during which compliance must be achieved or all consequences "up to and including termination" will ensue.

In situations where the employee is the proverbial bad actor, the creation of a conclusory warning letter bereft of any connection to the employee leads to a slippery slope for management.

This writer has observed more than 25 separate cases where the integrity and the bona fides of the warning letter have been zealously rebutted by good lawyering. In one case, an employee received a review where a salary increase was recommended. One week later, she was fired for "performance issues."

In another situation, in a department staffed by lawyers, an employee was presented with 15 company violations in a warning letter. Once again, good pre-litigation lawyering established that all of the standards articulated in the letter had been exceeded by the employee.

In both instances, considerable settlements were negotiated. As companies struggle with the at will doctrine, there has to be a collective effort among in-house counsel, human resources executives and staff, and senior management to provide the necessary dispute resolution systems and training to convey an understanding of the "paper trail." The company needs to recognize when the need arises to create a paper trail, and gather the documentation and create a nexus between the purported transgressions and the employee.

The absence of such training and ADR systems will contribute to more claims and, consequently, an avalanche of pleadings in pursuit of the "Paper Chase."

This article appears in the Nov/Dec 2003 edition of "Alternatives" magazine,
which is published by the CPR Institute for Dispute Resolution