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Paula Barran is mad at NBA star Latrell Sprewell. Not because he jumped his boss, Golden State Warriors coach P.J. Carlesimo. But because Sprewell, who was suspended for a year, is crying wrongful termination and calling on lawyers like Johnny Cochran to help him get his job back. "There isn't a clearer example of when somebody should be fired, and he's trying to get his job back," says a bewildered Paula Barran. "This is an example of what we're facing these days." Barran isn't a pontificating sports columnist. Rather, Barran is Portland's premier employer defense lawyer, and she thinks workers are taking unfair advantage of employment civil-rights laws. Oregon employees filed a record 320 civil-rights cases in Oregon federal court this year, according to the Administrative Office of the U.S. Courts. That might not sound like a lot, but it represents a dramatic increase over the previous record--276 cases in 1995--and a 200 percent increase in the past five years. Barran says she's not at all surprised by the numbers. "I used to spend most of my time just giving advice, but when I look back on this year, it seems like all I've been doing is litigating." Even though Barran is profiting from the trend, the scrappy 49-year-old thinks the numbers reflect badly on the American legal system and on the work force. "Crummy employees are abusing the system and hurting decent employees," Barran says. "In the end, it's a big waste of money. It makes you wonder about the law." The law Barran is talking about is the Civil Rights Act of 1991, a new and improved version of the landmark 1964 Civil Rights Act. And in recent months the 1991 act has been called into question. In September, the conservative Free Press published the widely reviewed book The Excuse Factory: How Employment Law Is Paralyzing the American Workplace by Walter Olson, which argues that employee civil-rights laws have gone too far. There is no doubt that the 1991 Civil Rights Act is directly responsible for the current escalation in employee lawsuits. The workplace in 1997 will be remembered less for microchips, Internet software or Web TVs than for producing a record number of depositions and affidavits. The big question is whether frivolous cases are overwhelming the American workplace, as Barran believes, or whether employees have been given necessary protections, offering them leverage against unjust abuses. Suing the boss wasn't always this popular. The number of employment civil-rights suits remained static throughout the entire 1980s. Between 1981 and 1991, the federal courts handled a consistent case load of about 8,500 employee civil-rights cases a year. Employment civil-rights cases involve employees who claim to have been sexually harassed, discriminated against due to race or gender, or fired for illegal reasons, such as employer retaliation against whistle blowing. Starting in 1992, however, employment civil-rights cases climbed nearly 25 percent a year. No other type of filing comes close to this rate of increase. Employment-rights cases are now the second-largest category in the federal civil docket. (Prisoner civil-rights cases still top the list.) Professor Henry Drummonds, who teaches labor and employment law at the Lewis & Clark College's Northwestern School of Law, says it's no accident the numbers started to increase in the 1990s. Drummonds says a new cultural awareness of sexual harassment was sparked by the Anita Hill/Clarence Thomas hearings and the Bob Packwood episode. He also says a series of pro-employee court rulings during the '70s and '80s, which articulated new concepts like "wrongful termination" and "employer retaliation," have finally had an impact on the law. Ultimately, though, Drummonds says the Civil Rights Act of 1991 jump-started the trend. "The significance of the 1991 Civil Rights Act," he says, "is that it created remedies with teeth." A close look at the reforms introduced by the 1991 act illustrates Drummonds' point. Though the act didn't lower the burden of proof for employees who brought suits against their bosses, it did strengthen a disgruntled employee's hand in two significant ways: It broadened workers' legal remedies, and it placed employee claims in front of a jury rather than a lone judge. Strengthening legal remedies for employees made a lot of sense. Prior to the 1991 act, workers who had been discriminated against or fired due to race, national origin or gender had only limited ways to fight back. They could only sue their employer for collection of back wages and reinstatement. Moreover, if the employee hadn't been fired, but was being sexually harassed on the job, he or she could sue only for injunctive relief; that is, the court could order the harassment to stop but could not punish the employer. This was neither practical nor effective, says Portland plaintiffs' lawyer Stephen Brischetto, who won a $225,000 sexual-harassment case against the Multnomah County Sheriff's Office in Oregon federal court in 1996. "If you were being harassed on the job prior to 1991," says Brischetto, "you had virtually no remedy." Portland plaintiffs' lawyer Richard Busse, who is currently bringing a sexual-harassment lawsuit against Nike, agrees: "What a woman could do before 1991? Basically, the court offered very little hope for her." The 1991 act, passed by a Democratic Congress in the embarrassing aftermath of the Clarence Thomas hearings and signed by President Bush, addressed the problem by adding damage awards to the federal list of employee remedies. Instead of simply facing payment of back wages, guilty companies now faced the reality of paying hundreds of thousands of dollars in punitive charges and emotional-distress compensation to the wronged employee. "Now there is a remedy with teeth to deal with sexual harassment in the workplace," Drummonds says. "And as a practical matter more attorneys are willing to take the cases." In addition to using stronger remedies to encourage lawyers and employees to come forward, the 1991 act also gave employees who sued the right to a jury trial rather than just a judge. Brischetto says this change has had an impact for two reasons. First, statistics show that juries rule in favor of plaintiffs more often than judges do. Second, true or not, lawyers believe that juries award higher damages. "It is economical to fight discrimination in the workplace now," Brischetto says. Plaintiffs' lawyers like Brischetto may be smiling--and, according to Barran, "making a small fortune." But Barran believes the 1991 act is being abused by derelict employees who are blackmailing good employers with frivolous claims. Barran, who is best known in legal circles for defending former Louisiana-Pacific CEO Harry Merlo against sexual-harassment charges in 1993, is an unlikely spokesperson for a corporate stand against the Civil Rights Act of 1991. For one thing, she is keenly aware of gender discrimination. Growing up in Ohio in the 1950s and '60s, Barran says, she always felt that education and career opportunities were not available to her because she was a girl. She says she scrapped her dream of getting a scholarship to the naval academy because she thought, "Forget it, you're just a girl." Luckily for Barran, she came of age during the era of the first civil rights act. Though the act ultimately didn't seem to help employees who had been wronged, it did help to break hiring barriers. "I have gotten to do what I've gotten to do professionally because of great laws like the Civil Rights Act of 1964," she acknowledges. Barran decided to go to law school after being inspired by a short-lived 1970s TV program. She still remembers the name of the title character, a gutsy female lawyer: Kate McShane. (Barran can still quote lines from the show.) Today, as head of Lane Powell Spears Lubersky's 40-person employment division, Barran says she's concerned about current employee law and how, in her opinion, it's transformed the workplace for the worse in two ways. First, she says, there's a new "sense of entitlement." "The welfare state mentality has entered the workplace," she says. "Culturally, people feel they have a right to a job. Well, technically, you don't. It's a shared responsibility between employee and employer. But there's been this attitude shift and people have a greater sense that they are owed something." Second, Barran says, the new laws have made it too expensive for most businesses to fight back. "A huge percentage of employees who lose jobs file lawsuits," she says. "When you get fired you just have to walk out the door shouting, and you'll get paid." It can cost as much as $75,000 for an employer to defend a case in trial, Barran says. Meanwhile, average verdicts are around $500,000. Rather than redeeming themselves in court, employers often decide to settle. One local defense lawyer agrees that the deck is stacked, telling Willamette Week, "I often tell my clients, 'You know the jury is made up of employees, not employers.'" The overwhelming tendency, according to local defense lawyer Heidi Guettler, who represents Nike and Albertson's, is to pay the employee to settle. Defense attorneys like Guettler and Barran call the settlement, usually between $30,000 and $50,000, a nuisance fee. "A lot of lawsuits are legal extortion," Barran concludes. Barran won't name names, but in her opinion, her clients have had to settle cases she calls "frivolous." Once such case, Barran says, involved a woman who complained because a colleague asked her to go for a bike ride. Another involved a plaintiff who was offended by blonde jokes. Yet another involved a plaintiff who relied on the Americans with Disabilities Act to argue that her employer discriminated against her by not letting her work "when and if I feel comfortable working," Barran says. "Can you believe some of this stuff?" Barran's sentiment has been captured in The Excuse Factory (which was sitting on her desk during one of our interviews). The book's author, Walter Olson, a senior fellow at the conservative Manhattan Institute, argues that the American workplace has been hindered by the unnecessary expansion of civil-rights laws. "In its zeal to provide a remedy for everything it perceives as wrong at work," Olson writes, "our laws have too often undercut the quest for competence and excellence. With laws like the 1991 Civil Rights Act, we have made it tremendously difficult just to get people to do their jobs." "Olson has an excellent point," Barran says. "And I deal with the frustrations he's talking about every day. The decent employees and employers are getting screwed by people who are abusing the system." Take, for example, Eddie Jackson. Jackson, a former Nike temp worker, sued the Beaverton company in federal court last month, claiming he was denied a full-time job because of his race. Jackson, who is black, claimed that two other temps, both white, were later hired for full-time positions. A review of Bureau of Labor and Industries records, however, shows that Jackson acknowledged during his job interview with Nike that he "doctored" his résumé to cover up the fact that he had been fired from his previous job at Intel due to "customer service complaints." (Employment civil-rights plaintiffs are required to file a complaint with either BOLI or the Equal Employment Opportunity Commission before filing in federal court.) BOLI rejected the claim, but as Nike defense attorney Corbett Gordon says, "a huge number of frivolous complaints that are rejected by BOLI are taken by lawyers and tie up federal court." Local plaintiffs' lawyers couldn't disagree more. "I don't know what employers are bellyaching about," says Portland plaintiffs' lawyer Kevin Keaney. Keaney, who won a $1.25 million wrongful-termination suit in Multnomah County last year, says that far-fetched cases are rare and defense lawyers like Barran are being disingenuous. "This argument that there's a bunch of frivolous lawsuits clogging up the court--I just don't see it. I think its an attempt to cow plaintiffs. It's analogous to so-called tort reform," he says, referring to a successful effort by corporate lobbyists earlier this decade to convince Americans they were too litigious. The truth of the matter is only 10 percent of American citizens bring civil suits, a number that has remained constant for more than 100 years, according to the Center for the Study of Responsive Law. "We are responsible lawyers. We take cases we can prove, otherwise we wouldn't take them." "If you actually look at the cases that are filed," says Brischetto, who faced off against Barran in the Merlo case, "there are a lot of egregious things happening in the workplace. The issue is whether you believe discrimination should or shouldn't be part of the workplace. If it shouldn't--you need effective tools to get rid of it. Before 1991 there was a tool, but it was ineffective. A lot of meritorious claims couldn't be brought forth. Well, now it's economical to do so." Brischetto keeps a running list of employment cases in his office. Rather than outlandish claims like Jackson's Nike case or comical anecdotes like the scenarios Barran describes, Brischetto points to nearly 20 cases in the past two years in which juries have heard employees' claims and have awarded thousands--if not hundreds of thousands--of dollars for legitimate instances of sexual harassment, wrongful discharge, whistle-blower harassment and racial discrimination. Typical examples include a $77,000 verdict against a Portland printing company in 1996 for disability discrimination, an $80,000 sexual-harassment claim against Precision Castparts in 1996, and a $1.5 million sexual-discrimination case against OSU in 1997. Keaney won a $1.25 million wrongful-termination case against Portland-based Evergreen International Airlines in 1996, when mechanic Andy Anderson contended that he was wrongfully discharged for refusing to install a defective part in a Boeing 747 or falsify the log book. A Multnomah County jury agreed. Brischetto won a $500,000 case against Washington County lawyer John Junkin when one of Junkin's employees, lawyer Michelle Burrows, claimed that he fired her for cooperating with an investigation into his mishandling of a case. "Employees are more aware of their rights today," says Charles Merten, a Portland lawyer who's been practicing employment law in Portland since 1963. "In the 1970s," he says, "wrongful termination was still somebody's pipe dream. In the 1970s, there were no rights to speak of, there wasn't anything you could do, the boss could fire you for any reason. Now it has gotten out that employees are not slaves and you do have rights." "Without the damage awards put in place," says Brischetto, "I'm willing to bet a lot of these cases wouldn't have been taken. The result of the Civil Rights Act of 1991 has been exactly what was intended." If the result of the 1991 Civil Rights Act were simply large judgments against employers, it would be hard to label it an unconditional success. Other developments, however, suggest that the act has been an important achievement. The workplace is, by and large, a more equitable place than it was six years ago. BOLI reports that its twice-monthly evening seminars on employer training on discrimination issues draw double the number of attendees than it did a year ago. Meanwhile, all kinds of employers, from Gunderson Steel to local school districts, are holding seminars on sexual harassment and discrimination. Even Barran's firm has started publishing a series of booklets on sexual harassment and discrimination policies. Clearly, the extra bite of the 1991 Civil Rights Act has helped whip employers into shape. It might hurt, it might occasionally be expensive and it might even lead to a few frivolous lawsuits. But these headaches should be placed in the larger context of the overwhelming benefits that stronger employee protections have brought to the workplace. |
