Study suggests trials too risky; are lawyers really to blame?

It is no surprise that nearly 90% of all civil cases settle before they ever get before a jury. The New York Times is reporting on a study by Randall L. Kiser, principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions, who wondered if the decision to proceed to trial and forego settlement is the correct one in the 10% of cases that are tried.

In a study to be published in the September issue of the Journal of Empirical Legal Studies, he concluded that plaintiffs are much better off taking the offer that is on the table instead of risking it all by going to trial:

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

"The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more," said Randall L. Kiser. ...

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The article suggests that lawyers are to blame by not giving clients the proper advice. Our jobs, however, are not to make the decision for our clients whether to settle or try a case. In fact, it would be unethical to do so. Instead, our role is to provide our clients with as much relevant information as possible, lay out the risks and rewards inherent in the options, and let them make an informed decision. If we think they are making the wrong decision, our job is to try to persuade them to what we think the right decision is, until they either come around to our way of thinking, or we determine that they will not.

The article also suggests that lawyers are driven by high fees and not good results for their clients. I respectfully disagree. Clients are relationships, not cash cows that can be milked dry in every case. The best way to build such a relationship is not by draining every nickel from a client on every matter, but by being cost effective. Part of being cost effective is understanding when it is time to fish, and when it is time to cut bait.

46.6 million reasons to think about settlement

In the largest verdict Ohio history, and what might be the largest single-plaintiff employment verdict ever, a Cuyahoga County jury has awarded $46.6 million to Ronald Luri against garbage hauler Republic Services. Cleveland.com reports that Luri was fired after he refused to fire three employees in their 60s. The jurors reported that they were outraged by Republic's conduct after it fired Luri: "The jurors said the key piece of evidence was an email penned by Luri's boss, Jim Bowen, the Ohio area president. Attorneys Shannon Polk and Richard Haber presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of Luri's job performance two weeks after Luri filed the lawsuit."

There are many lessons to be learned from this story, but none more important than this - companies need to be aware of the risks that are inherent any time they step into the courtroom in an employment case. In Ohio, only 6 out of the 8 jurors must agree on the verdict. Of the 8 total jurors, it is a sure bet that at least 6 will more naturally identify with the employee than the employer, which means that the company is usually playing from behind.

Secondly, as far as employers are concerned, an employee's performance history must be frozen in time as of that employee's termination date. Nothing will anger a jury more than a company that looks like it is trying to cover its actions, either by destroying damaging documents or creating helpful ones. The shenanigans the jury found to have taken place after Mr. Luri was fired was a significant factor in the verdict, and if his personnel file was frozen on his termination date, I predict that the verdict would have looked much different.

Unsurprisingly, it is reported that Republic will likely appeal the verdict. Regardless of how much of the $46 million holds up, employers should use this information as a wake up call. Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day.

In responding to harassment complaint, prompt means prompt

In Bailey v. USF Holland, the 6th Circuit had occasion to examine whether the employer's response to two African-American employees' claims of racial harassment was sufficiently prompt to defeat liability. This case provides a good case study from which companies can learn how, and how not, to respond to an employee's internal complaint.

Bailey and Smith, both African-American, were dock workers for USF Holland. Throughout their employment, their white coworkers constantly subjected them to the word "boy." When they would complain to their coworkers that the word "boy" is offensive when directed at a black man, they would sarcastically respond, "damn it boy." The more they complained, the more serious the harassment would become. It moved from words to vandalism, including "boy" spray painted on equipment, etched into walls, used to depict black men in cartoon drawings, and even written on a calendar on MLK Day. The harassment was not limited to the use of the word "boy." Bailey discovered a noose hanging in the dock area, and Smith overheard one white coworker telling another that he liked Smith because he could call him "a low-down dirty nigger" and Smith would not do anything about it.

Two years after Bailey and Smith started complaining to management about the offensive use of the word "boy," a new terminal manager and the VP of HR decided to conduct "sensitivity training" at the terminal. During that training it was explained that "boy" was offensive to African-Americans because it was used as a racial epithet during slavery. During the training, "several white employees voiced resistance to the idea that it was wrong to refer to African-American men as 'hey boy' or 'damn it boy.'" One white employee, Fred Connor, even told the terminal manager that "boy" was a "southern thing" and he would continue to use it regardless of company policy.

Not surprisingly, the behavior continued for several months after the training, as did Bailey's and Smith's complaints to management. At that time, USF brought in an outside lawyer who conducted a three-day investigation. He concluded that "while the environment likely is not racially hostile [huh?], it is certainly one in which more sensitive employees can feel uncomfortable." As a result, the VP of HR wrote to Bailey and Smith, telling them that the company could not discipline any employees because the use of "boy" was not racially motivated and that everyone had denied the other alleged conduct.

As the graffiti and harassment continued, USF hired a handwriting expert and terminated the offending employee, Fred Connor. He filed a union grievance and was reinstated. After his reinstatement, Connor reiterated to the terminal manager that "he would not adhere to the policy and would continue to use the word 'boy' as he saw fit."

Finally, in 2006, 4 years after Bailey's and Smith's first complaint and a year after they filed their lawsuit, USF installed 25 security cameras, which finally ended the graffiti.

At a bench trial, the district court judge awarded Bailey and Smith each $350,000 in compensatory damages.

On appeal, USF argued that it could not be liable for the harassment because it took "reasonable, prompt, and appropriate corrective action." The 6th Circuit disagreed:

Defendant cites examples of its corrective action, noting for example that it "consistently had a reasonable harassment policy," conducted employee meetings to respond to plaintiffs' complaints, and disciplined the employee responsible for the graffiti. The district court correctly rejected these actions as insufficient. A harassment policy itself means nothing without enforcement, and the persistent harassment plaintiffs received over an extended period of time caused the district court to conclude that the policy was not consistently enforced. Defendant conducted employee meetings, but plaintiffs' coworkers stated that they did not consider their use of "boy" to be offensive and insisted that they would continue to use it. Defendant discharged Connor once it discovered that he created the graffiti, but he was reinstated soon thereafter. USF Holland was unable to stop the graffiti until it installed security cameras – an act it did not take until after plaintiffs initiated this lawsuit.

Termination of the alleged harasser is not the be all and end all of corrective action. Usually courts do not second guess an employer's course of remedial action. Indeed, had the sensitivity training succeeded in ending the harassment, I doubt that Bailey and Smith would have prevailed. When, however, the offending employee tells the VP of HR during sensitive training that he will continue calling black employees "boy," and others offer similar resistance, a company cannot turn a blind eye and hope that everything will work out. By the time employees started being disciplined and security cameras were involved, it was "too little, too late."

The timeline in this case spanned nearly 4 years from the first complaint to the installation of the cameras. In a case such as this, 4 weeks might not even be quick enough of a response. The severity of the response (i.e., counseling, discipline, termination) can vary depending on the severity of the harassment, but the quickness of the response cannot. Companies that allow problems such as these to fester and continue by dragging their feet in investigating and remedying them do so at their own peril, as the $700,000 verdict in this case illustrates.

Some folks call it a jury verdict, I call it a lot of money

A federal jury in Forth Worth, Texas, has answered the age old question: How much is it worth if a female employee receives depraved and violent phone calls from a male co-worker for more than two years, in which he apes the voice of Karl from Sling Blade, threatening to kill her and cut her up. The answer: $15.6 million. On the up-side, the verdict was solely against the co-worker. The employer, American Airlines, was dismissed from the case.

The Star-Telegram has the details.

6th Circuit affirms maternal profiling verdict

I've been writing lately about maternal profiling, which is employment discrimination against a woman who has, or will have, children. Last week, the 6th Circuit, in Lulaj v. The Wackenhut Corporation, provides us a good example of this type of stereotyping in action.

Lisa Lulaj worked at Chrysler as a fire security officer, first as a Chrysler employee and then as an employee of Wackenhut Corporation after Chrysler outsourced its security operations. Lulaj accepted the transition to Wackenhut solely because she was promised a promotion to a supervisor position. Shortly after the transition, Lulaj filled out forms notifying Wackenhut that she was pregnant and would need a larger uniform. Within a month, her immediate supervisor offered her a lesser promotion than she was originally promised, looking at her stomach and telling her, "You should consider this position considering your position." Within a month, Lulaj went out on maternity leave. When Wackenhut refused to promote her to the originally promised supervisor position at the end of her leave, she decided not to return to work. She sued to pregnancy discrimination under Michigan law, and the jury awarded her a total of $200,000, to which the judge added $49,500 in attorney's fees. The trial judge also took away $142,168 in lost wages because the jury found that Lulaj had voluntarily quit and had not been constructively discharged.

The 6th Circuit rejected Wackenhut's argument that there was no nexus between Lulaj's pregnancy and the promotion decision. The the contrary, the court considered three pieces of evidence critical to its decision that Lulaj was discriminated against:

1. Company managers were aware of her pregnancy long before she officially informed them.
2. The timing of the events suggests discrimination.
3. The way her superior glanced at her stomach suggested that pregnancy was a factor in denying the promotion.

This case is a good example of how maternal profiling can cause a bad result for an employer. At the same time, however, it sets a potentially dangerous precedent by allowing a discrimination claim to stand based in large part on subjective interpretations of glances and stares.

Federal court upholds punitive verdict with no compensatory damages

It has long been the law in Ohio that a jury cannot award punitive damages without also making a corresponding award of actual, compensatory damages. Further, since the United States Supreme Court decided State Farm Mut. Automobile Ins. Co. v. Campbell several years ago, it has also been the law that for a punitive verdict to satisfy due process, there cannot be an excessive disparity between the actual harm suffered by the plaintiff and the punitive damages award. The Supreme Court, albeit in dicta, suggested that "few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process."

A case earlier this week out of the 5th Federal Circuit, however, casts serious doubt on both of these long-held principles. In Abner v. The Kansas City So. RR, a racial harassment case, the court of appeals upheld a $125,000 punitive damage jury verdict with a mere grant of $1 in nominal damages by the court. Abner involved allegations of racial graffiti, a noose hanging outside a door, racially derogatory comments, and a company that failed to correct this improper behavior.

In reaching its conclusion, the court relied heavily on the statutory damage caps put in place by the Civil Rights Act of 1991. The court found that under the plain language of Title VII and Section 1981, an award of punitive damages need not be accompanied by any compensatory damages. The statutory damages cap takes care of any potential runaway jury verdicts. Also because of the statutory cap, the court was unconcerned with the 125,000-1 ratio between the punitive and nominal damages. If the plaintiff was not harmed by the alleged harassing conduct, how could he have been sufficiently subjectively offended by the conduct to sustain the harassment claim in the first place? The gap in common sense in allowing this punitive verdict to stand for an uninjured plaintiff is astounding. Civil lawsuits are supposed to compensate for harm suffered, not to punish for the sake of punishment. If there is no harm to remedy, then the law has no role in doling out punishment.

Let me also point out that the conduct that led to a $125,000 verdict in Abner is eerily similar to the same conduct over which the EEOC settled with Lockheed Martin for $2.5 million earlier this week. I can't wait until the next time I'm asked to evaluate a racial harassment case and have to provide a range of $125,000 and $2.5 million as the potential exposure. Does this disparity make any sense at all?

Hat tip to John Phillips at The Word on Employment Law and Ross Runkel's Employment Law Blog.

Lord of the pants - When is the right time to countersue?

This morning's USA Today is reporting that famed Irish dancer Michael Flatley has won an $11 million judgment against a woman who had accused him of raping her in a Las Vegas hotel room. According to the article, the woman threatened to sue Flatley unless he agreed to a "seven figure" settlement. When he refused, she sued him, but the case was dismissed. Flatley responded with a lawsuit against the woman and her lawyer, alleging extortion, intentional infliction of emotional distress, and defamation.

While the Flatley case does not involve an employer/employee relationship, it is nevertheless interesting to look at in relation to the Ohio Supreme Court's decision last week in Greer-Burger v. Temesi. I cautioned that employers should tread lightly in filing lawsuits against employees who have engaged in protected activity. Flatley illustrates one situation where it might make sense to file a lawsuit against an employee - where the value of one's personal reputation is harmed by the mere filing of the employee's claim. For example, a CEO or celebrity accused of sexual harassment has a lot to lose even by having a meritless claim alleging sexual misconduct filed against him or her. Another example that comes to mind, although not implicated by the Flatley case, is where an employee has stolen trade secrets. In those examples, the individual or the company has something of value to gain other than mere retribution.

The decision of whether to file a claim against an employee or ex-employee is not an easy one, and should not be undertaken without careful thought, a clear strategy of the goals to be achieved, and consideration of whether those goals are worth the risk of defending against a likely retaliation claim or the perception in court that the counter-suit is merely retaliatory. For Michael Flatley, the decision was a no-brainer, as he was being accused of rape and being extorted. For your company, the decision should be of the same degree of certainty before a similar decision is reached.

Should companies move their employment work to small and mid-sized law firms?

Last week, the Legal Intelligencer, as posted on Law.com, reported on the filing of a legal malpractice lawsuit by a nonprofit agency, the The Bair Foundation, against one of the world's largest law firms, Reed Smith. Now, you may ask yourself, why would the Ohio Employer's Law Blog care about a legal malpractice lawsuit filed in suburban Pittsburgh. The answer comes in two parts: 1) the underlying case was a religious discrimination case that was tried in federal court in Cleveland and resulted a nearly $200,000 jury verdict, and 2) the Bair foundation was charged $960,409 to defend the garden-variety discrimination case. According to the Law.com article:

The foundation said in the complaint that it was originally told the case would cost them $50,000. That was then upped to $112,000 during the case....

"In implementing its ambitious strategy of capturing global clients, which Reed Smith boasts results in 'a constant increase in revenue per partner,' it has acknowledged that comparatively small regional or local law firms can or perhaps should service smaller clients," the complaint stated. "This is so because such firms typically charge much lower fees than 'white shoe' international law firms like Reed Smith and are therefore more affordable to these smaller clients. However, Reed Smith has inexplicably continued to represent certain much smaller clients which lack substantial financial resources, such as Bair, a not-for-profit charitable foundation."

The foundation's [current] attorney, Bruce C. Fox of Obermayer Rebmann Maxwell & Hippel in Pittsburgh, said no explanation was ever given as to why the fees increased to nearly $1 million. He said his client was "badly taken advantage of."

Fox said he doesn't think large, international firms should represent clients like the Bair Foundation because of global law firms' economic models.

The lawsuit alleges inappropriate billing practices, including over-staffing the case, failing to adequately describe billing entries by subject matter or activity, and raising billing rates without notice.

The Bair Foundation's predicament illustrates two key trends to watch in the legal profession for 2008, as discussed in Robert Denney Associates' 19^th Annual Report on What’s Hot and What's Not in the Legal Profession (hat tip to Tom Kane at The Legal Marketing Blog): Labor and Employment continues to be a hot practice area, and mid-size firms are thriving by "attracting clients faced with the high rates – and often poor service – of the large firms." KJK has 31 lawyers, so I have a stake in this discussion. That stake, however, does not change the fact that the small and mid-size firms have as much to offer, if not more, than the large institutional firms. It's not just a question of hourly rates, but also more economical staffing, increased efficiency, and better client communication, all with the same or better quality of legal work. My hope is that these issues cause companies of all sizes to consider small and mid-sized law firms the next time they are sued in an employment case.

Age discrimination lawsuits and plaintiffs' victories continue to rise

When I started this blog six months ago, one of the first posts was on the proliferation of large jury verdicts in age discrimination cases. (See Age discrimination lawsuits continue to rise)

The front page of today's Cleveland Plain Dealer picks up this theme that more age discrimination cases are going to trial, and more are ending in big verdicts for employees. The article cites last year's $16 million dollar verdict obtained by Tommy Morgan against New York Life, in addition to other multi-million dollar verdicts handed down local courts in other age discrimination cases. A former colleague of mine, Marty Wymer, correctly points out, "Everyone on the jury is either over 40 or a close family member is over 40," and that plaintiffs benefit from these jury demographics. Tommy Morgan highlights the theme that plaintiffs use to drive many of these case to big verdicts: "They were making room for younger people."

The lessons for employers to take from these large verdicts haven't changed since I first wrote on this issue:

1. Well documented, legitimate, reasons for a termination are more important now than ever, as the stakes in these cases continue to rise. Indeed, under Ohio law, the stakes in these cases are higher than ever, as unlike its federal counterparts, Ohio's employment discrimination statute contains no caps on damages.
2. Judges and juries continue to punish companies where there exists a perception that the employee was treated unfairly, often times regardless of any discriminatory motive.
3. All legal issues aside, the golden rule is the best risk management practice -- employers should treat employees as they would want to be treated if in their shoes. Juries are comprised of many more employees than employers, and if those jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to punish the employer, and the dollars needed to resolve the case will be much lower, if needed at all.

Jury rules against Isiah Thomas

The jury in the Isiah Thomas sexual harassment trial has returned a verdict of $11.6 million dollars against Madison Square Garden and its chairman, James Dolan. The jury spared Isiah Thomas any personal liability, although it is certainly hard to calculate the damage this trial has done to his reputation. The verdict breaks down as follows: MSG owes $6 million for condoning a hostile work environment and $2.6 million for retaliation. Dolan owes $3 million. ESPN.com quotes U.S. District Judge Gerard E. Lynch calling the verdict "eminently reasonable." It is therefore doubtful he will do anything to reverse the verdict or lessen the amount. MSG, meanwhile, is quoted as saying: "We believe that the jury's decision was incorrect. We look forward to presenting our arguments to an appeals court, and believe they will agree that no sexual harassment took place and MSG acted properly."

I can't make this stuff up

Ollis v. HearthStone Homes presents a textbook example of how not to make personnel decisions, and is also just plain funny.

The owner and president of HearthStone, John Smith, practices a fringe religion that focuses on Mind Body Energy (MBE) sessions to cleanse one's negative energy. He required his employees attendance at such MBE sessions to enhance their work performance. The case recounts Smith's interesting MBE practices:

According to Smith, an employee’s negative energy could be discovered either through a machine that tests a person’s electromagnetic energy field or through a manual process called “muscle testing.” Muscle testing may require a person to extend his or her arms while answering “yes” or “no” questions. If the person’s extended arms remain strong while questioned as someone pushes down on the arms, the answer is “yes,” whereas, weak arms indicate an answer of “no.” Another example of muscle testing is to place two fingers together and to answer “yes” or “no” questions. If the fingers remain together, the answer is “yes”; whereas, if they separate, the answer is “no.” Smith used muscle testing to make business decisions. Smith equates muscle testing “to someone who may pray before they make decisions.”

On one occasion, Smith determined by muscle testing an employee that drainage problems in a HearthStone subdivision were caused by that employee's ancestors perishing on the land during the Ice Age. Smith determined that the employee was unknowingly defending the land on behalf of her ancestors, and required her to attend MBE sessions to cleanse her negative energy.

Smith also used muscle testing in conducting a sexual harassment investigation against the plaintiff, Doyle Ollis, a devout Christian. After the investigation, Smith terminated him for “poor leadership and lack of judgment," which the jury found to be pretext for Ollis's opposition to Smith's MBE practices and religious discrimination. For the termination, the jury awarded Ollis a whole whopping dollar in damages (plus attorneys fees). Perhaps the jury's low award was influenced by Ollis's admission that he had asked the complaining female subordinate several inappropriate questions, including asking her about her “freakiest” sexual encounter, how long she had known her spouse before she had sex with him, how many sexual partners she had, and if she wore thong underwear. As an aside, HearthStone later terminated the complaining employee for reportedly “removed her clothing at a golf outing and ... doing cart-wheels naked on a golf course.”

Like I said, I can't make this stuff up.

Jury verdict underscores rights of veterans

A federal jury in Portland, Oregon, returned a $985,000 verdict in favor of a National Guardsman terminated by Target after his return from military duty. The jury found that the employee was fired when he tried to come back to his old job and that it retaliated against him for asking for reinstatement. The evidence at trial was that Target management told the employee that his enlistment following 9/11 "would not be beneficial to his future career," that he was demoted following his return from active duty, and when the National Guard intervened on his behalf to have his previous position restored, Target terminated him. The jury awarded $85,000 in economic damages and $900,000 in punitive damages for the retaliatory termination. It found the demotion, however, lawful.

This verdict highlights the rights held by employees who take military leaves of absence. Military leaves are covered by the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA provides reemployment protection and other benefits for veterans and employees who perform military service. The law applies to all members of the United States military, reserves, and national guard. Under the statute, military service is not only defined as actual active duty, but also inactive duty training. In sum, USERRA requires that all employers must grant military leave for all full-time and part-time employees for up to a period of 5 years, provided the employee provided appropriate documentation for the leave. Employers have no obligation to pay employees during a military leave, and employees have the option to use, but cannot be required to use, accrued paid time off (such as vacation days) during the leave. If a military absence was 90 days or shorter, the employer must restore the employee to his or her former position. If a military absence was 91 days or longer, the employer must restore the employee either to his or her former position if it is still available, or if it is not available, to a job that is equal to the former position in status and pay. Upon an employee’s return from a military leave of absence, the employee must be compensated at the rate of pay he or she would have received had he or she continued working during the period of leave. The employee must also be restored to full participation in benefit plans.

It is a good idea to have a military leave policy so that all supervisors and managers understand the rights and responsibilities under this law.

Everybody hates Wal-Mart

Let's suppose you own pharmacy, and your female pharmacist leaves her post unattended and permits an unauthorized underling to dispense prescriptions. You have two choices: retain the employee and risk that her recklessness will result in the incorrect filling of a prescription (which could lead to serious liability concerns), or fire the pharmacist for her recklessness. A Massachusetts Wal-Mart chose the latter, and a jury punished it the tune of nearly $2 million (including $1 million in punitives). The employee claimed that Wal-Mart discriminated against her because of her sex and retaliated against her by firing her two weeks after she asked to be paid the same as her male counterparts. Apparently, one of the key issues was the lack of a specific policy prohibiting the plaintiff's misconduct, an issue on which the plaintiff presented an expert HR consultant to testify. According to Massachusetts Lawyers Weekly, settlement was never an option because the plaintiff insisted on a term to which Wal-Mart would not even discuss, an apology.

The lessons of this case are many. Employment decision should not be based solely on whether you will be sued for it, but you are always safer if you have a specific policy on which you can rely to support the decision. The lack of a policy seems to offend juries' notions of fundamental fairness. When all else fails, sometimes the simplest things (like an apology) may go a long way to avoid a jury at all.

Jury hits Kohl's big in "family responsibility discrimination" case

To help drive home yesterday's post about family responsibility discrimination, a Cuyahoga County jury today awarded a former assistant manager for Kohl's Department Stores $2.1 million. The plaintiff, Teresa Lehman, claimed that she was discriminated against because of her parenting role for her two young children. According to the Cleveland Plain Dealer, the evidence at trial showed that in "two-month period, five store-manager jobs went to less-experienced and less qualified men than Lehman, or to women with no children or women who assured their bosses that they would have no more children." At the same time, Lehman, who had previously been told by her bosses that she was manager material and on track for a promotion, was passed over and transferred to less desirable stores. Witnesses testified at trial that Lehman's bosses asked her questions such as: "You're not going to get pregnant again, are you," "Did you get your tubes tied," "I thought you couldn't have any more kids," "Are you breast feeding," and "Are you having any more kids?"

In a lesson that all employers should take to heart, the Plain Dealer quotes juror Linh Duong's explanation of the panel's sentiments: "I think she was very poorly treated because she was pregnant, because she wanted to have a family."

This stunning success for Teresa Lehman will further underscore for employees and plaintiffs' lawyers that judges and juries will not give a free pass to employers whose decisions exhibit an intent to discriminate against women who want to work and have a family at the same time. I wrote yesterday that this type of discrimination should be a lesson in HR 101. Companies need to pay careful attention to verdicts such as this one. This issue bears close watching, as it appears it will be a hot button issue in employment law for the foreseeable future.