Effective Employment Counsel Requires Going Beyond the Law

All attorneys seek to protect their clients from the worst-case scenario. In civil cases, this is visible in the exceptionally high number of disputes that are settled. The calculus is simple: Attorneys do not want to leave their clients’ fates to a jury, lest the verdict go not just wrong but disastrously wrong. For the most part this is a good thing. More often than not it means that both parties can at least live with the resolution of the relevant conflict and not overburden the courts’ dockets.

But a consequence of our adversarial system is that lawyers have been taught to always think as crisis-oriented advocates for their clients. Even the preventive medicine attorneys prescribe, such as prenuptial agreements or simple employment contracts, seemingly focuses exclusively on avoiding that worst-case scenario: losing big at trial.

Due to the nature of our civil rights laws, perhaps nowhere is this more prevalent than among employment attorneys who work for corporations or government agencies. Many attorneys help clients develop programs that meet the legal standards in workplace training and other required measures, in an effort to ensure an affirmative defense against a lawsuit.

“Make sure you’ve completed your sexual harassment training for the year, and here’s a list of other topics to cover and policies to issue. If you get any complaints, let me know—we can use all this for our defense. It’ll limit damages and may even allow us to get summary judgment,” employment attorneys tell their clients.

Limiting advice to these important but basic steps is a disservice for two key reasons. First, it deludes the client into thinking such programs can account for every eventuality. Second, it invariably concedes that being sued is part of the cost of doing business. Neither is true.

Attorneys Cannot Account for Every Eventuality

Legally compliant workplace training programs tend to deal exclusively with workplace behavior that is easily identified as illegal. However, employee complaints are not always a result of that which is expressly forbidden, nor have our courts and legislatures envisioned every possible workplace scenario that may be found to be illegal under the current law.

Take, for example, sexual harassment law. The commonly understood definition of sexual harassment protection under Title VII was not settled until two landmark 1998 U.S. Supreme Court decisions: Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton. But prior to those cases, there were already plenty of workplace harassment complaints.

Today, there are likely complaints concerning workplace conduct that has not yet been fully adjudicated. Tomorrow, there may be entirely new interpretations of existing law, or new landmark cases that bring to the forefront previously unfathomed yet illegal workplace conduct. With this in mind, it is quite clear that no attorney can make the claim that a workplace training program accounts for every issue that may arise.

Formal Workplace Complaints are (Usually) Our Failure