“Incident, Pattern, or Lifestyle: The Defense Counsel Toolkit in the Handling of Employment Discrimination Actions”
By Steven Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not, in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
I recently had an employment discrimination case that reminded me of a presentation that my daughter’s fifth grade teacher gave to the parents one September at a Parents-Teacher Night at the elementary school my daughter attended.
The employment discrimination was typical. The employee had some performance issues was terminated. The employee asserted this was a pretext for race discrimination which was the true reason for the termination.
Getting back to my daughter’s fifth grade class, the teacher was talking about the need to be timely when turning in homework. The teacher told the parents his system which I thought was actually quite brilliant.
He said: “If it happens once, it is an incident. If it happens a few times, it becomes a pattern. If it then continues to happen, that would be considered a lifestyle.”
The point that the teacher was making was obvious. If a student misses turning in a homework on one occasion, that is something that the teacher will make note of, but can be corrected and even overlooked if this incident does not reoccur. If it happens a few times, this is an issue that takes on some significance, and really needs immediate attention. Negative consequences should be expected. The parents can be called in to work on a strategy on how their child can change this pattern. If it is a lifestyle, we have gone well past even a pattern, and the only pattern we may now be looking at is repeating fifth grade.
This analysis is quite useful when attempting to evaluate and defend employment discrimination claims. The question of “Incident, Pattern, or Lifestyle” is one that can be looked at from both the employee as well as the employer perspective. How did the employee perform? If the employee was terminated, was it because of a single incident? If so, was this incident one of great significance? If it was a single incident, did it reflect in anyway with the employee’s overall performance, or using the terminology of this article – the employee’s lifestyle.
Another way to turn the word “lifestyle” around is to look to whether the job that the employee was terminated had a specific job description with specific job requirements. In other words, the employee had applied for a job that described what the job entailed, and what those requirements of the job were. An offer was made to the employee which was accepted.
The job itself can be considered a “lifestyle choice” that this employee accepted. The reason that the employee was terminated was simply that the lack of performance reflected a rejection of the lifestyle that had been accepted when the employee accepted the offer of employment.
Given this or any other analysis employed in the evaluation of employment discrimination claims does come down to proper documentation. My daughter’s fifth grade teacher made sure to be clear that “Incident, Pattern, or Lifestyle” would be documented.
It is no different in the employment context. The one characteristic of employment claims that make them unique from any other type of claims is that it is the only type of claim that, if it went to trial, it would be tried before a jury of experts. Everyone on the jury, at some point or another, has held a job. Because of this, they look at fairness. If the employee makes a mistake just once, but overall satisfies the “lifestyle” required by the job, and is then terminated, it may not pass the fairness test.
However, the question of fairness goes in a different direction. It is not about fairness to the employer. It is a question of fairness to other employees. If you are presenting a case to a panel of employee experts, it is always from the employee perspective. If the terminated employee did not satisfy the “lifestyle” job requirements that had been originally accepted, what was the effect on other employees? If one employee failed to perform, it is likely that it required another employee to pick up the slack, to clean up the mess, or just work harder. Fairness is a two-way street, but remember that it is a street that is only occupied by employees.
This point is brought home, or amplified, in particular, in the defense of School Districts, as a prime example. Defense counsel should not be defending this concrete building, or the “management” of the School District. They are representing all the teachers, all the students and all the parents.
“Incident, Pattern, or Lifestyle” then turns to the actions of the employer. I am asked quite often as to what trends that I see in the handling of employment discrimination claims. Interestingly, I see more and more claimant’s attorneys who feel compelled when they assert employee discrimination to not only assert one basis of discrimination, whether it is age, race, gender or disability. They assert every basis. The employer discriminated based on age, race, gender and disability. Of course, if the claimant’s attorney is successful in proving discrimination on each and every basis, who would be left employed at the Company?
However, this over pleading can be used to the employer’s defense team’s advantage. If the employee’s attorney alleges four bases of discrimination, and three of them can immediately be refuted, the fourth basis for which there may be a reasonable question of fact can now be called into serious question. If a “pattern” is established with three claims being frivolous, by the fourth claim, the folks on the jury may start to think “lifestyle”, and then not give that claim the serious consideration it may otherwise deserve.
We again then get back to the Employer’s “lifestyle.” I think that, too often, “office culture” is used, but it is really misused. It is a word to gloss over or even misrepresent what may be really there, and the reality is that any office may have many different cultures. It is the soup with many ingredients that are the different group of employees put together. One person leaves, and he next day, a new person is hired, and the culture becomes slightly different. In the School District example I used above, it is “lifestyle” of everyone involved: teachers, students and parents.
From the employer vantage point, “lifestyle” can be also looked at from both a “micro” and “macro” approach. You start with the “macro”. Age, race, gender and disability – we have the overall employee population. What is the makeup of the population? How may incidents of discrimination have occurred?
We then look at the situation from a “micro” perspective or the actual claimant. We should always remember one thing. All discrimination claims have one thing in common. That one thing is that when the employer decided to hire this employee, there was no act of discrimination. That act of hiring which is free of discrimination towards this particular employee. This act of hiring is a significant piece of the employer’s “lifestyle.” If we have this very positive piece of employer lifestyle, can it be shown that negative aspects of employer lifestyle somehow followed?
I have written in other pieces about looking at cases with the perspective that opening statements that talk about what the evidence will show be presented as “promises made to a jury”, and the closing argument be centered around being always able to rely on the jury’s common sense. The “Incident. Pattern or Lifestyle” analysis should be considered as part of this tool kit when defending and evaluating employment discrimination actions.
