How the adversarial conflict escalates between employers and employees

Plaintiffs often look to law or organization policy to object to management decisions, especially with new managers feeling threatened by high performers. They observe race and/or gender bias and attempt to resolve it through their employers’ internal channels: meetings with HR or higher-ups or ethics hotlines. Sometimes employers analyze and tackle claims at the source and help managers learn from mistakes to prevent future cases. Most of the time, they either assume managers handle the claim or simply don’t investigate or investigate only to understand if the employee has a legit legal claim and to re-position the claim as a miscommunication and meritless.

Because of this encouragement to report problems, plaintiffs report surprise to hostile reactions from employers when they report, assuming they will be receptive. With no resolution or with termination — and without awareness of the asymmetry of power in the workplace and legal system — employees contact a lawyer or the EEOC to try to obtain fair treatment.

Meanwhile, employers treat the situation as an adversarial conflict and focus on both minimizing legal risk to protect managerial hierarchy and on maximizing their own interests. According to Rights on Trial, employers often:

  • Pose claims as ambiguous, incomplete, irrational, misguided, greed-driven, or frivolous and vilify complaining employees.
  • Position the employee as source of the problem — a lack of fit, a breakdown in a relationship, or unrelated performance issues — and use negative performance evaluations to foreshadow termination.
  • Give advanced notice to the legal department to check documentation of talks, warnings, and chances to improve.
  • Mandate arbitration to resolve issues outside of court.
  • Offer generous severance pay plans (for signed waivers) to treat employees well on the way out to avoid lawsuits.
  • Spout a commitment to discrimination-free workplaces through training (which teaches employees they have few rights and to tolerate mistreatment). In other words, they bring law to the workplace to keep law out of it.
  • Individualize problems to avoid discrimination liability.
  • Feel that management may make objective business decisions employees don’t like or even mistreat but not discriminate against employees. They often believe protected employees try to exploit their status for financial gain. Due to attorney fees and outcomes, they are never fully satisfied with case outcomes or feel vindicated.

When they sue, plaintiffs often realize power shifts from the abuser to the employer, dramatically increasing issues for plaintiffs. The major stress and complete life upheaval for employees is just a problem for employers. Employees often:

  • Feel confused and naive with less legal experience and resources.
  • Receive little to no help from unions, who don’t often use their power in individual cases (harmful to future negotiations).
  • Are subject to evaluations from employers’ physicians, opening up the potential for false accusations and digging up dirt.
  • Lose the ability to pay for basic living expenses (mortgage, bills, and food), nevermind attorney fees, and suffer psychological harm and loss of identity associated with the job if they’re terminated.
  • Are subject to public undermining of their character and competence.


Photo by Hunters Race.

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