Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in.
The allegations of racial harassment in Turley v. ISG Lackawanna Inc. are horrible. They involve graffiti about King Kong and the KKK, a toy monkey with a noose around its neck tied to the plaintiff’s car, and death threats. For the full flavor, I recommend reading the court’s opinion denying (in part) the employer’s motion for summary judgment.
Yesterday, the jury returned a $25 million verdict in favor of Mr. Turley on his claims of racial harassment and intentional infliction of emotional distress. According to the Buffalo News, one of the employer’s themes at trial was that “much of what happened at the steel plant is the kind of ‘trash-talking’ that’s common in manufacturing facilities.”
I once handled a case with similarly egregious allegations of racial harassment (KKK graffiti, liberal n-bombs, threats to drag the plaintiff tied to a truck, and a fistfight with his allegedly racist supervisor). The case settled on the eve of trial for several decimal points less than $25 million.
At trial, I was not planning on debasing the plaintiff’s allegations by challenging their veracity (there were too many witnesses that would verify most of them), or by portraying the events as something they were not—such as horseplay or trash-talking. Instead, I built my case around the fact that the plaintiff had resigned in the face of these allegations and voluntarily chose to return to the same workplace a few months later. He only sued (I would argue) out of embarrassment after losing a fight. In other words, I was planning to try the case by challenging the plaintiff’s perception of the workplace and the harm it caused him, not the racial motivation of his co-workers.
I know nothing about Turley v. ISG Lackawanna other than what I’ve read in the above-linked opinion and news story. But, it strikes me that likening KKK graffiti and a toy monkey with a noose around its neck as common “trash talking” is a recipe for a disaster, even if $25 million strikes me as excessive.