National Clothesline
How perception influences judges
The American Bar Association has published the results of a study into whether
race or gender affects judicial rulings.
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The results of the study were sobering. Employees did significantly better (46
percent) when the judge was African-American than when the judge was Hispanic
(19 percent), white (21 percent), or Asian-American (33 percent). The study
also concluded that employees doubled their chances of prevailing on appeal if
one or more of the judges on the appellate court panel were women.
While I realize that statistics do not necessarily prove causation, these
statistics reaffirm my belief that people make judgments based on their biases
and prejudices, whether they realize it or not.
Two people can be presented with the same facts and reach different conclusions,
based on a variety of factors, including life experience. For example, when I
was an employee of a law firm, I saw things much differently than I do now as
an owner of the business.
But cases are not supposed to be decided based on “bad” experience. How is an employer supposed to know when not to trust his or her
judgment because a judge of a different race or gender might see things
radically differently?
As I am sure I have stated in this column before, I have a management philosophy
that colors my perception of things. I tend to want to reward initiative and
hard work, and I have a difficult time looking at employees as victims.
Some lawyers, however, view all employees as victims or potential victims, and
it is difficult for them to see why employees should be disciplined under any
circumstance.
When those lawyers become judges, they rarely begin with true impartiality,
thinking that employers are guilty until proven otherwise. Yes, these lawyers
become judges.
The opposite, unfortunately, also happens. During the early years of the
discrimination laws, there were federal judges who rarely, if ever, ruled
against an employer accused of discrimination.
These judges always went along with the employer’s explanation, no matter how biased it might appear to the impartial observer.
Perception is such an important part of the law that employers, businesses, and
potential litigants need to be aware of how their actions will be evaluated by
judges or juries with an anti-business bias.
That’s one of the reasons why I tell managers that they need to be able to convince
12 strangers that they were correct in firing an employee before they take
disciplinary action.
In fact, before a trial, I spend hours cornering friends and acquaintances to
tell my client’s story in a way that the most anti-employer person would find the client’s actions acceptable.
As most people know, during jury selection, judges and lawyers try to eliminate
jurors who might be affected by a bias or prejudice.
Potential jurors are asked questions to find out, for example, if they have ever
been the victim of discrimination, which would make them more likely to
identify with a former employee charging discrimination.
I have struck jurors from a panel because I thought, based on their appearance
alone, that they would favor employees over employers.
But almost nothing is done to eliminate judges or government officials who might
have such tendencies. A lawyer who made a living suing insurance companies
before being appointed a judge will likely reach a different conclusion in an
insurance case than a lawyer whose clients included Travelers, GEICO, or Blue
Cross Blue Shield. Yet, nothing is done to keep such judges — in either case — from deciding insurance cases.
As I write this article, the Senate appears to have killed the nomination of an
in-house union lawyer to serve on the National Labor Relations Board. It was
believed that the lawyer’s opinions, reflected in published articles, were too radical for him to be
impartial when deciding cases under the National Labor Relations Act. The
problem is compounded, however, because lawyers with labor experience tend to
favor either management or labor.
Because perception, bias, and prejudice are such a part of daily life, employers
must understand that their decisions will not always be reviewed by judges with
the experience to appreciate the wisdom of a seemingly appropriate employment
action.
For example, in a small company, tough decisions about personnel are constantly
made because the survival of the business depends on it. Indeed, in a small
company, one radically different employee can affect morale and productivity.
Sometimes, an employee must be terminated because he or she not only fails to
fit in, but also causes friction by his or her very different personality.
It is difficult for a judge who has never run a business to understand this
problem. It is difficult for a judge, especially one who thought he was a
victim of discrimination during his lifetime, to identify with an employer who
has just fired someone of the same race as the judge. That judge is not a
problem because he is dishonest; he is a problem because he sees the same set
of facts from a different perspective.
The only advice I can give is to stay out of courtrooms as much as you can. Make
solid employment decisions, communicate them properly, and make sure you can
explain your reasoning to people who may have experiences radically different
than yours. Remember, perception — not honesty — is the issue.
