Given Walter’s mention of the EEOC’s new attempt to solve America’s chronic shortage of employment litigation, this covery story from Business Week is timely. It surveys the state of employment litigation in the U.S., describing how risky it is for companies to fire employees, and the six figure price tag associated with the lawsuits that often result. The article discusses the growing trend in suing over “retaliation” claims:
As it happens, the judge in Mody’s case tossed out his discrimination claims. But the retaliation allegation did go to the jury—a development that is increasingly blindsiding businesses. Plaintiffs are winning large sums not because a company discriminated against them, but because the company retaliated when they complained about the unproven mistreatment.
The rules surrounding retaliation may sound crazy, but they are one of the big reasons why the fear of firing is so prevalent. Retaliation suits are a hot growth area in employment law. In 2005 and 2006, retaliation claims represented 30% of all charges individuals filed with the Equal Employment Opportunity Commission, a required first step before most discrimination cases can go to federal court. That’s up from about 20% just 10 years ago. “Even if there isn’t a good discrimination claim, the employee has a second bite at the apple,” notes Martin W. Aron of defense firm Edwards Angell Palmer & Dodge in Short Hills, N.J.
The article touches upon the Pacenza case we’ve covered here before (Feb 2007), but it also provides this anecdote I had never heard:
Even when employers beat back silly suits, it often doesn’t feel like much of a victory. That’s because meritless cases can still tie up companies in burdensome and expensive proceedings for years. In October, 2002, Southview Hospital in Dayton fired Karen Stephens, a nurse who worked in a unit for premature babies and other at-risk newborns. Six other nurses had reported that Stephens was abusive to infants, according to court filings, spanking them when they were fussy, wagging their noses until they screamed in pain, pinching their noses shut to force-feed them, and calling them “son of a bitch.” Stephens, who was 60 at the time, sued Kettering Adventist Healthcare Network, which operates Southview, denying “inappropriate” conduct and alleging that the real reason she was let go was age discrimination.
Only after a year and a half of legal dueling did a federal district judge in Dayton toss out Stephens’ claims in April, 2005. But then she appealed, and it took another year—and an additional round of legal briefing—before the U.S. Court of Appeals for the Sixth Circuit upheld the dismissal, noting that “Stephens has offered no evidence to indicate that she did not mistreat the infants,” or that Kettering did not have a “legitimate, nondiscriminatory reason for discharging her.” Kettering declined to comment on the case. “I never lost a baby in 25 years,” Stephens said in an interview.
Of course, that Business Week thinks a three and a half year long litigation is remarkable just shows that they don’t read enough Overlawyered. Read, as they say, the whole thing.
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