Monday, April 19, 2010

When should you get an attorney involved with a problem employee? As soon as possible.

A few weeks ago I wrote about what employers need to know about EEOC investigations. I suggested that employers get attorneys involved “as early as the first receipt of the charge of discrimination.” West v. Tyson Foods (6th Cir. 4/15/10) (unpublished) [pdf] provides a great example of the importance of the early involvement of counsel.

Amanda West quit her job at a Tyson chicken processing plant after being subjected to more than a month of fairly pervasive sexual harassment. During her exit interview with Tyson’s HR manager, West talked about all of the harassment to which she had been subjected and that her supervisors failed to respond to her complaints. She also identified the perpetrators by name. The HR manager, however, did not conduct any investigation into the allegations until after Tyson received West’s EEOC charge. At trial, the court admitted into evidence the HR manager’s notes from the exit interview, along with its EEOC statement of position. That position statement falsely claimed that Tyson launched an investigation following the exit interview. From this evidence—along with the evidence of the harassment and the supervisors lack of response—the jury awarded West $1,281,636.58—$131,636.58 in lost wages, $750,000 for mental distress, and $400,000 in punitive damages—which the 6th Circuit affirmed.

What is the lesson here? Having an attorney draft the position may not have saved the day, but it would have certainly lessened the impact of Tyson’s involvement in the harassment. The misstatements in the position statement make it look like Tyson was trying to cover up what happened. That perception of a cover-up likely led to the high compensatory and punitive awards.

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