Wednesday, February 12, 2020

Why Employment Cases Settle

Often times when representing the employer in employment discrimination cases, we find ourselves encouraging employers to settle claims even though the employer has solid legal defenses. It is frustrating for employers to retreat from a legal position when they know that they did everything right. It’s also frustrating for the lawyers of those employers who really want to prove that the employer did everything right. The problem is often that the employee/plaintiff has a fact or two that seems to support their claim and the other problem is that JURIES ARE UNPREDICTABLE.

Case in point: St. Louis County just agreed to settle a discrimination case of a police officer claiming that he was denied promotions based on his sexual orientation for $10 million. That is a lot of money, but not so much when you know that the settlement came after a jury awarded the officer almost $20 million. While the officer claimed loss of promotional opportunities, he remains employed as a police officer throughout the time in question (although I’m sure he is preparing his retirement papers now).

Of course, there was some testimony in support of the officer’s claim. As a 15 year employee, he was denied promotion several times although he also seemed qualified for the advancement. More compelling was the trial testimony that he was told that the Police Commission (who made the promotional decisions) said that he should “tone down his gayness” if he wanted to be promoted. Whether that statement was accurate or whether it reflected the reason for the denial of promotions is unknown to us bystanders.

There are two sides to every story, though, and not only did the employer deny that the statement was made, but also offered evidence of conduct and performance deficiencies that quashed the officer’s promotional hopes. But, in the end, the jury believed the officer’s evidence of discrimination and sent a message of dissatisfaction with the employer to the tune of almost $20 million.

Employers should note that juries are unpredictable. As much as they are instructed on the law, they often cannot keep out their emotions, especially in employment cases since many jurors have also been employees. And, when a jury feels that an employer is wrong, they can be pretty generous in compensating the plaintiff. Meanwhile, St. Louis County is likely somewhat relieved that the case is only costing it $10 million.