Lessons From Appellate Practice: Inclusive Decision-making May Increase Litigation Risks

Quick Hits

• Discrimination claims often hinge on the motive behind employment decisions, leading to extensive scrutiny of the decision-maker’s comments, knowledge, and timing, with plaintiffs’ lawyers seeking to expand the field of scrutiny and defense lawyers aiming to limit it to a single, unbiased decision-maker.
• Involving multiple people in employment decisions can increase the risk of unhelpful evidence and bias claims, as seen in scenarios where delayed communication and additional input complicate the defense and potentially introduce retaliation claims.

Yet, the defendant itself can sometimes be its own worst enemy here, making more targets for the plaintiff to shoot at. Why do multiple people become involved in making the decision? Perhaps those with authority take solace from being able to share the responsibility. Perhaps modern management styles compel those with authority to “empower” others with decisional input. Or perhaps those in authority simply are not sure what to do. Afterall, firing an employee is a major step that can bring with it (unwanted) attention, time costs, and monetary expenses.

The more people involved in the decision, however, the greater the risk that some kind of unhelpful evidence emerges. The more people there are giving input, the more targets plaintiff’s counsel has in the search for bias. And, the more people involved, the longer the decisional process. The passage of time itself allows for further developments that may also prove unhelpful to the defense.

Imagine two different scenarios where “too many cooks” could spoil the defense broth.

1. The manager with decisional authority knows upon hearing about misconduct that he is going to fire the employee, once the misconduct is verified. The manager asks human resources to investigate. But even after the misconduct is confirmed, that fact is not immediately communicated to the manager. Instead, among other things, the human resources leader polls others on her team about what they think should happen, and then makes a recommendation to the manager. In the meantime, the manager discusses the issue with other members of his team, some of whom offhandedly weigh in with their own thoughts. Instead of a straightforward defense that there is no evidence the single decision-maker had any prohibited bias, the defendant may find itself having to explain away the alleged bias of one or more of the others whose views had been directly or indirectly conveyed to the manager.

2. A high-level manager advises that an employee should be discharged, but leaves the final decision to a group of managers. Instead of acting immediately on the guidance, the group of managers continues to discuss options including lesser forms of discipline. In between the guidance and the final decision, however, the plaintiff files a complaint with human resources that she has been the target of discrimination. Now, instead of a straightforward decision by a high-level manager who has no known bias, the defense must deal not only with the discrimination case (and more targets for bias), but also with a retaliation claim that would not have existed if the guidance had simply been carried out immediately.

There may often be good reason for consultation and investigation, but sometimes less is more.

Ogletree Deakins’ Appellate Practice Group will continue to monitor developments and will post updates on the Employment Law blog as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts