Wednesday, November 4, 2009

Context is key in employment cases

The Phillies stand on the precipice of elimination as they head into Game 6 tonight. And, if Pedro Martinez can turn back the clock 10 years for one more start, the Phils’s likely Game 7 starter, Cole Hamels, has some ’splainin’ to do. After the Game 4 loss, Hamels, who has failed to live up to the successes of his 2008 campaign, was quoted as follows: “I can't wait for it to end. It’s been mentally draining. It’s one of those things where, a year in, you just can’t wait for a fresh start.” What’s missing from all of the press coverage lambasting Cole for quitting on his team is that his quote was taken from a 20-minute interview in which he begged for the ball in game 7 to atone for his poor game 3 performance.

Folks, context is key. If we, as lawyers, are doing our jobs correctly, however, context is often missing, obscured, or spun beyond recognition. Take, for example, an age discrimination case in which an executive says, “I always take age into consideration when I make a personnel decision.” That’s a pretty damning statement for an employer. Yet, it’s easy to understand the harmlessness of that statement when it’s taken in context. Maybe that executive doesn’t intend any age-based animus, but, being 65 years old herself, equates age with experience and wants to make sure she hires the most experienced person. Thus, in the quest to testify honesty, she answered “yes” to a damning cross-examination question.

The problem for you, as an employer defending a discrimination lawsuit, is that you often will not have the opportunity to give the explanation and provide the context until much later in the case. The statement likely will be elicited during the plaintiff’s case through careful cross examination. You will not have the opportunity to rehabilitate that witness and have her explain the statement until you recall her as part of your case, likely several days or weeks later. By then, the damage is done. Employment cases often turn on one key fact. In an age case, such an admission by an executive can be that one key fact that results in a plaintiff’s verdict.

The lesson for you, the employer, is this – even the most innocuous statement, when taken out of context, can be perceived as a damning admission. When dealing with problem employees, we must carefully parse and choose our words. Those that are used carelessly will come back to haunt us, even if the intent means no harm.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or