Learning From a Sex Discrimination Suit - Part II
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This is the second installment of our comments generated by Collins v. Cohen Pontani Lieberman & Pavane, S.D.N.Y., 04 CV 8983(KMW)(MHD, a decision of the Southern District of New York, and the Law.com article that brought it to our attention. In the first installment, we commented on one of the legal issues that caught our attention. We now offer comments on some of the facts, as presented in the Court’s opinion.
First, please note that the decision was on a motion for summary judgment and, therefore, the alleged facts have not been proven. The Court merely determined whether the factual allegations were sufficient to present issues for trial. Here are a few of those allegations.
- Plaintiff was informed at the employment interview that lack of technical background would not bar promotion to partner but lack of technical degree was later cited as a reason for not promoting plaintiff;
- Plaintiff was informed at the employment interview that business origination affects compensation but not eligibility for promotion to partner - - insufficient business origination was cited as a reason for not promoting plaintiff;
- Defendant did not investigate plaintiff’s sex discrimination complaint;
- A partner’s e-mail notes a disconnect between a favorable performance review and the lack of increased compensation;
I acknowledge that the risks of litigation and the managerial issues that we identify on this blog may not be very important to organizations large enough and with sufficient resources to be successful despite them. Organizations whose resources are more limited and that may be looking for an edge may have more to consider. Also, although this case involved a law firm, I think the principles are general and I will discuss them as such, not in relation to the one firm with the misfortune to be the defendant in this case.
For example, the question of whether partners are expected to bring in business or require a technical background can be generalized and raises issues on three levels:
- First, there is the strategic issue whether the organization has figured itself out and knows how it wants to build its organization for success - - in other words, whether management itself has decided what the operative goals (business origination or unique goals) ought to be or what factors are predictive of success (technical background or not).
- Second, there is the issue of whether the operative goals (such as, business generation or development of unique personal contributions) and the requisite qualifications have been effectively communicated to employees so that they may align their efforts to promote the organization’s success.
- Third, there is the issue of whether policies in implementation of the operative goals are consistently applied so that an individual in a legally protected group is not subject to prohibited discrimination.
The failure to investigate a discrimination complaint would reflect a narrow view of senior management’s role in protecting the organization.
Then, there are the performance reviews. I will disclose strong personal opinions about performance reviews from significant experience with formal performance reviews as a human resources professional, as a middle manager in corporate organizations and, now, as an attorney. The more sophisticated the review process, the more problematic it can become.
My belief is that performance reviews do not need to be sophisticated. They need to be honest, precise and compassionate. When there is a disconnect between flowery performance reviews and bad employment outcomes, the written reviews become rich and abundant resources for discovery and depositions. Even when there is no litigation, that same disconnect can be a source of persistent discontent and constant distraction that undermine an organization’s performance.
I have seen arguments made that there should be no formal reviews and, instead, employees should receive regular, frequent feedback as work is performed.
The important point is that feedback, whether formal or informal, needs to be honest and effectively communicated. Performance reviews that are well done can be (and in my experience have been) effective tools when it comes time to terminate an individual’s employment, rather than, evidence for a discrimination lawsuit.
The Collins case is an interesting one and I’m sure we have only touched on a few of the issues, legal and managerial, presented but the case.
Image: U.S. Courthouse, Pearl Street, New York; from Website of U.S. District Court for the Southern District of New York.
