AccelPro | Employment & Labor Law
AccelPro | Employment Law
On Discrimination, Harassment and Retaliation
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On Discrimination, Harassment and Retaliation
With Carla Brown, Partner at Charlson Bredehoft Cohen Brown & Nadelhaft | Interviewed by Matt Crossman

Listen on Apple Podcasts and Spotify.

Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about discrimination, harassment and retaliation. Our guest is Carla Brown, a partner at Charlson Bredehoft Cohen Brown & Nadelhaft.

A little-known secret: Most employees, if they are victims of discrimination, harassment or retaliation, don’t want to sue. They want to keep their jobs. They want their issues resolved, not litigated. 

One of the best ways to do that is for everyone involved to listen, whether it’s a human resources executive tasked with dealing with the complaints or an attorney hired by the employee. “I think the vast majority (of lawsuits) could be avoided just by that alone,” says Brown, who has decades of experience handling such cases.

Brown joins us to talk about the differences between discrimination, harassment and retaliation, how to recognize them, and best practices to resolve such disputes. The supplemental materials and episode transcript are available below.

Listen on Apple Podcasts and Spotify.


Interview References:


TRANSCRIPT

I. DISCRETE, CONTINUOUS AND PUNISHING ACTS

Matt Crossman, Host: Let’s start by defining terms. Discrimination, harassment and retaliation all are interrelated, but they’re also distinct. For human resources executives and employment attorneys, what are some helpful ways to distinguish between them?

Carla Brown: They have an everyday person meaning. Most people understand what discrimination is—that I’ve been treated differently—and legally it’s not different than that.

The question is whether you were treated differently because of a protected category or something the law said you shouldn’t be treated differently based on. So I speak to a lot of people who say I was discriminated against, and under the legal definition they were not.

Discrimination really is a discrete act, right? So a demotion or failing to promote somebody—those are isolated incidents that happen on one particular day. Harassment or a hostile-work environment happen over a series of times. They can be very severe, or they can be less severe, or they can be things that just change your workplace.

But I think of discrimination as a discrete act, and harassment as a number of acts that occurred over a period of time. And then retaliation, I think, is the simplest of all of them. In discrimination, you have to be right that you were discriminated against to win. In harassment, you have to be correct that you are harassed in order to win.

In retaliation, you actually don’t have to be correct that what you complained about is discrimination or harassment. You just have to be punished for raising it. So I try to give the example that somebody could say, “I complained that I was treated differently because I was a black female, and Carla got super mad.”

Maybe I was mad because I thought I would never discriminate against somebody based on what I’ve been through, but I’m mad anyways. So you don’t actually have to be right about the underlying issue. You have to be reasonable about your complaint, but the retaliation is just someone punishing you.

MC: Do HR executives and employment attorneys understand retaliation? What do they need to understand better?

CB: Yes, I think that they do. Although I represent employees, I see highly qualified HR individuals on the other side who are trying, and I see defense attorneys who know the issues well. I think of employment law and HR matters as really a niche, and people who are in it do know what they’re doing pretty well.

The biggest issue I see though, is really that people need to try to be neutral. I think it’s helpful for HR people not to draw a conclusion. Someone complains this happened to me, and the HR person says, “I’m sure it was a misunderstanding, or maybe it was a mix up.” 

Until you look into it, how could you possibly have an opinion one way or the other? So I think they understand it, but I would say that you could resolve a lot of issues at a neutral level if you just listened a bit more. Because people make mistakes and people say things incorrectly and those things can be fixed sometimes. But employees feel very nervous if the initial response to their complaint is that it didn’t happen, or you’re misunderstanding it, or some other kind of gaslighting.

That’s not a great way to start things. 

II. LISTEN BEFORE JUDGING

MC: How much easier would this all be if people listened better, if they didn’t rush the judgment?

CB: I would think a vast majority could be avoided just by that alone. I think there’s a misperception that employees want lawsuits. They don’t.

When people call me, they want to know how they can continue working in their job. They’re nervous. They don’t want to go to HR. They know that there’s consequences, but it gets to the point where maybe they were denied a promotion, their money was messed with, there’s something that they really can’t avoid anymore.

And if they felt like HR was listening, I think that would avoid a lot. Most of the time, unfortunately, if it’s “he said, she said,” then the HR department can’t confirm or deny unless there’s some other corroborating evidence. So the answer’s going to be, “we looked into it and we couldn’t substantiate what you said, and let us know if anything else happens.”

But instead of that response, sometimes it’s, “we looked into it and we didn’t find that what you said was true.” That’s a judgment call for the other person. So just be careful how you word that. 

MC: What tips for best practices would you have to make that process better?

CB: Just listen at the beginning, undertake things, get back to people, common courtesies. People want a call back, or they want to know when they can expect a call back or a response. 

Sometimes even if you’re doing the right thing, but you leave the employee in limbo for two or three weeks during an investigation without touching base, that alone will really cause them a lot of stress. And what’s the harm in saying this is something that’s going to take us two or three weeks? If anything happens in the interim, let us know. Some really simple things like that can make a big difference to an employee who’s already stressed.

I’m not making a judgment that the harassment or the discrimination occurred, but what I’m saying is that the person feels that. And you could probably at least alleviate the stress of being in an investigation, feeling isolated. Otherwise an employee starts to say, “well, I didn’t get invited to lunch, and now I feel like that’s part of the investigation because nobody’s talking to me.”

Maybe you tell them who you talked to or might talk to and maybe you give them a timeline of when they can expect a response and what’s being done. Those are very easy things to do that don’t compromise the company.

MC: Retaliation is the most common charge lodged with EEOC. What do human resources executives and employment attorneys need to know about why that is?

CB: Retaliation starts with a complaint. It has to start with a complaint of something unlawful or illegal, so you’re really getting an opportunity to resolve the issue. 

Some of my management friends say all the time, “I’m not on the bad side, Carla. I’m the one who helps to make sure that things are resolved when they should be.” 

If there is a way to resolve them, OK. But don’t put the answer or the resolution on the employee because they’re not HR people, they’re not trained to figure out what can be done. They don’t know the company structure, they don’t know what’s available within the company.

That’s your job. For example, you don’t have to agree with an employee to tell them “look, if you want counseling, it’s in the EAP policy.” You don’t have to agree, and I understand the compromises there, but you know what tools are there, and it’s certainly helpful to offer them.

Federal law requires you to take prompt corrective action in response. It can be things like counseling, and it should be something that’s employee centered versus employer centered. So there are always things that can be done there. I’m not suggesting you don’t ask the employee if they have an idea of what they want, because some do. But it shouldn’t be their job to figure it out.

III. SOLVING PROBLEMS WITHOUT LITIGATING THEM

MC: One of the focuses of your practice has been identification and reduction of risks of disputes before they happen. What does that look like in the area of discrimination and harassment and retaliation?

CB: So I think it starts pretty early. If an employee comes to you and they complain, don’t assume that an attorney isn’t behind them helping them.

Lots of times employees reach out to me while they’re still employed because they want to solve the problem themselves. They don’t want to be the HR target, they don’t want to be retaliated against. They know what that means. 

So I think resolution to me is always, is there a way to resolve it? Sometimes there’s somebody in the company that the employee has a good relationship with who might be an avenue for them while still maintaining or preserving their rights through HR, meaning they’ve lodged a complaint.

Sometimes there are employees who want to work out an exit that they could live with going forward. So even before we get to claims, we’re involved at that stage. And then even when we bring claims, I think we have a legal duty and ethical duty to try to see if we can resolve claims before they get to litigation. And some are ripe for that, and frankly, some are not. 

Now that we have so many trained mediators, including even judges who leave the bench to go to mediation, that’s something that’s easy to explore. So I really feel like when I get to court, I’ve exhausted every other means to get the case resolved.

I’ve helped the person try to resolve it. I’ve tried to help the person in the company resolve it, and now we just have to let the jury resolve it. 

MC: You call yourself a solver. Solving doesn’t always mean litigation. What are some ways that we can solve these issues that stop short of going to court but also address the issues that need to be addressed. 

CB: I think sometimes employees can work out a resolution while they’re still employed, if they just maybe had a little bit of help and ideas on what is relevant to the employee and also to the company. So if we can resolve it there, then my clients love me because they don't have to spend a lot of money on litigation.

And if they’re exiting the company, and they can sit down with somebody and make a real proposal on what would get them from where they are to where they’re trying to be in their next employment, I always encourage them to do that, to give some ideas and suggestions on things that could work. The beauty of doing this for a long time is I’ve seen a lot of things that I never thought that I would.

So there’s a lot of ideas to be had if the parties really think about it. I also think this is another reason why mediation is successful because you have judges and lawyers who’ve seen a lot of things making a lot of suggestions to lawyers who’ve already seen a lot of things, so the high rate of success is just a product of that. It’s a lot of brains trying to find a solution who have seen things work. 

I want to solve it for them. We love things that help us. I never give up on solving the problem, and sometimes it’s just going to be figuring out who solves it for you. Is it the judge? Is it the jury? Or can the parties do it themselves?

MC: I might be asking you to give away secrets when I ask this question, but I am going to ask it anyway. I imagine you’ve had cases where you wanted to tell the plaintiff, “thanks for making my job easier.” What can employers do to minimize their risk of being accused of retaliation?

CB: Retaliation is such a human reaction. Sometimes I think they have trouble with bad actors, but I believe it was 2016, the EEOC did a study on harassment in the workplace, and what could be done to really avoid that?

I think it ended up being 90 pages. And they came to the conclusion that sometimes it boiled down to civility, and civility enforced from the top, so from the CEO down. 

The code of conduct is sort of a throwaway in a lot of companies. It exists, but they only trot it out if they’re trying to punish an employee for doing something when they want to get rid of them anyway. 

If you enforce that and stop people from engaging in bad behavior, you probably would avoid the inappropriate comments and the inappropriate behaviors because it’s just not tolerated.

Then you don’t have to decide, was it just boorish behavior or was it really discriminatory? Just knock it out and then we wouldn’t have it. 

MC: I’m glad you used that phrase “boorish behavior" because it leads into a retaliation question that I wanted to ask. Occasionally the defense of either discrimination or harassment will be that it was simply boorish behavior.

People say things that they say they didn’t know were inappropriate. It seems to me retaliation is often much more intentional. You can’t call it boorish behavior if you’re making somebody work the graveyard shift as punishment. Is that a fair assessment and therefore is retaliation in some ways easier to prove than discrimination and harassment?

CB: I think retaliation is easier to prove than discrimination or harassment because lots of times it’s a timing issue. Everything was sailing along until I brought this complaint forward, and now everything that I do is wrong. My report was wrong, my presentation was wrong, everything was wrong. So I think that makes retaliation a bit easier to prove.

But that’s a mixed bag. Typically what you find is the female executive is being written up more harshly than everyone else. Her presentations are grilled more carefully than everyone else. They decide to do an event at a strip club geared toward males. So things like that can be a mixed bag. 

But in lots of harassment cases, the bad behavior is part and parcel of the harassment that the person’s suffering. So it’s really hard to isolate boorish behavior from discrimination. It’s just proving it. And I do think if you just knocked it off, then you wouldn’t have as many problems.

MC: “Quit being an idiot” seems like pretty sound legal advice. Are we ever going to get to the point where we’re not having this conversation? 

CB: I think the Me-Too movement was hugely enlightening. I feel like those are issues that we’ve been arguing about for a very long time. I think the George Floyd movement, Breonna Taylor, so many others, really helped on race discrimination and what that looks like.

So I think there is movement, but you know, progress just doesn’t move directly the way that we want it to. It sort of takes time. So do I think it’ll ever be knocked off? I’m not sure. I think people need to learn how to treat people. That would make a big difference. 

We all make mistakes, we get upset, we have bad days. So I think there’s a difference between having a bad day and harboring thoughts that are just very discriminatory. It’s one thing to scream at somebody. It’s something else to scream certain things at someone.

IV. THE CHANGING LEGAL LANDSCAPE

MC: You’ve been an employment lawyer for almost 25 years, dealing most of that time in this realm of discrimination and harassment and retaliation. What has changed in that time?

CB: Wow. I would even say in the last few years things have really changed. We get some flip-flopping of decisions. When I was practicing initially, discrimination was really hard to prove in certain jurisdictions, and in most jurisdictions things like microaggressions or comments weren’t really as recognized by the court.

There’s an article, the topic is the art of speaking well, and it was about saying certain things to people of color, like, “wow, he’s really articulate” after some Stanford graduate wins the Heisman and is a man of color. And you’re like, “Well, yeah, he went to Stanford. What do you expect?” 

This article, I used to quote it in briefs, and I also used to put the link in complaints. I don’t have to do that anymore. So I feel like that’s progress. I think there is a lot of progress about the way the court, at least the trial courts, have been treating the cases that are coming before them.

I’m not going to suggest there isn’t still a hill to climb. But it’s a whole lot better than where it was a couple of years ago. 

MC: How do you decide which cases to take? 

CB: So, wow, I feel like I should have a yellow traffic cone that says, “Work in progress.” You always want to help people, right? I also do get to help people going into jobs, and that’s way more fun, and also something where maybe they can avoid a lot of these issues that end up in litigation. 

But for people who have lost jobs, they’re distressed, they’re upset. If they’re high performing, they’ve never been in this situation before. They’re beside themselves. So it is a work in progress. I want to take great cases on great facts that I think will make good law. Every lawyer wants to do that. 

Someone once told me, “I only take good cases that are going to get good law, and I know when I meet with the person.” I don’t think it’s that easy for me. And quite frankly, there’s a lot of cases in the legal system—Brown versus Board of Education, for example—that I don’t know people thought they were going to win, but they thought they were worthwhile and worth fighting for. And there’s a lot of people that have claims that are worth fighting for. 

MC: So just as it’s important for the HR executive to listen when an employee comes to them with a concern, that’s a vital skill for you as well, right?

CB: It is. There’s a prominent DC firm that does psychiatric testing on their clients before they take them as clients.

I really do think if a lawyer could do it like the CIA, where you can tell if someone’s fibbing by the way they rub their eye or wink or whatever, that would probably be helpful to us as well, because people tell compelling stories.

We have tissues on our desk at work. They cry, and it all makes sense. And only a few times have I really learned that a client was totally off. 

I tell people to get counseling when I’m talking to them and people think, “oh, it’s good for the case, right?” I’m like, “No, I need you to be clear headed and give me an accurate story when you come back.” 

We are going to have to make a lot of decisions whether we file, whether we settle. I can’t make those decisions for you, and if you can’t make them for you, they can’t get made. So I tell people to get counseling. Whether they do or not, I don’t know, but listening is a huge skill for me. I’m human. I’m sure I have days where I don’t listen as well as I should. Or maybe I missed something.

Probably personality detection would be another helpful skill for plaintiff’s attorneys because there are some people who are just clever and you don’t find out things until you start to get documents.

MC: Every case that you get has somebody doing something bad to somebody else. How do you deal with that on a personal level and not just have a jaded view of humanity?

CB: I’ve seen some really bad things probably from people that were really bad people. So those were the easy cases. It’s easy when they’re just acting badly. We deal with sexual assault and rape in the workplace, and it’s not hard. I don’t feel anything for the person on the other side. I understand that I’m supposed to be a professional, but I don’t lose sleep over that.

I think there are people who did some bad things, but the harder part is the people who allowed it to happen. Those are the people who maybe didn’t do it, and maybe weren’t as close to it, but they certainly had the ability to prevent it. There are opportunities, if they want to own up to what they’ve done, they can.

I think most cases that get to court are pretty serious. So you’re not losing that much sleep for the defendant, to be honest with you. And then, you know, in retaliation claims, they often go after the person. They go after the person’s family, they go after the person’s significant other. They knew better.

I think that’s the vast majority of cases that end up in court. They should have known better. I feel bad for my client and what they went through and how much they’re suffering and the person never needed to do it and somebody else could have fixed it. 

I feel like I worked pretty hard to try to separate out the wheat from the chaff. Sometimes we get there, but sometimes we don’t.

V. THE POWER OF MENTORS, THE BENEFITS FOR MENTEES

MC: Now I want to pivot and ask you some professional development questions. You’ve been in employment law for 25 years. Was that on purpose? What was your path from law school to specifically employment law? 

CB: I came out of law school, and I was lucky enough to be hired by a small firm. It was a husband and wife, and they did everything from employment to construction. We evicted people from their houses, and I realized pretty quickly that wasn’t my favorite thing, especially when people would tell me I was inhumane and ask me where my soul was. That was not my favorite line of work, but it’s what I was hired to do.

And then I did some employment on the defendant’s side. And not to say that there aren’t worthy defendants who deserve to be defended and who did nothing wrong. But there was an opening for an employment lawyer at my firm. My partner is Elaine Charlson Bredehoft, probably the most notorious employment lawyer that’s ever worked in the state where I was, and it was just great.

My path is punctuated by a couple of things—a really great mentor in my partner, a really great mentor in my mother, and a really great mentor in my husband who had to listen to me at the dinner table.

It took me a long time to realize I’m a solver for the court, too. I think I was too quick to decide, they didn’t give me what I wanted and I told them I was going to be aggressive and file so I filed. And I finally realized, sometimes I wasn’t giving enough thought to the issues, and now the court has to think them through.

And so sometimes if I gave a little bit more thought how something could be resolved and maybe instead of one proposal, which was all my way, maybe if I had some other proposals for the court, I actually could get more that would help my client. And it might help the court not have to sit through two hours of an argument that if counsel had really sat down and thought about it, they could have solved themselves.

Sometimes solving is not possible. There are disputes that just have to be disputes, but sometimes you’re in the fight of litigation and you can’t hear each other and you can’t think about what the right answer would be. 

I know I fail a lot, but if there’s a dispute, I try to think about two or three ways that maybe it could be resolved, and sometimes just the court has to resolve it.

And I always hear from the court, too, that lawyers don’t give enough thought to solving, they just drop things on the court’s table. And I always know I’ve messed up, if the court’s like, I don’t exactly understand what you’re asking for. I’m like, well, see, that’s an example Carla. Let’s not do that again. 

I’ve definitely slept in my office. The worst feeling is when you’ve been in your office from 7:30 one day to 7:30 the next day because I didn’t have a toothbrush and my teeth were starting to get that film over them. I don’t mind the hard work, and “no sleep till Brooklyn” as the Beastie Boys say, but I got real lucky and I had a really supportive family and the opportunity to work that hard. I know different lives afford you different luxuries, but that is a luxury that I had.

MC: Mentors are so important. You strike me as a person who would also mentor young attorneys. Is that true? And what do you tell them?

CB: So I’ve been really blessed to work with some young attorneys. There’s a person who just went to another firm from our firm who’s just gifted. 

Young lawyers are smarter these days. They’ve done everything you can do in law school, every clinic, every opportunity. So that makes it really easy. 

I probably could try to have more time, I would think, for them. But I try to give honest answers. I want to help them. I definitely don’t want to see them make the mistakes that I have made wherever it’s avoidable.

So I try to speak pretty honestly. And I think I’ve kept in touch with most of the people I’ve worked with throughout my life, and most of the young attorneys, I at least get to hear from them somewhat. 

I tell them, “Look, you’re going to have two types of people in this life. You’re going to have the person who’s super nice to you and rips you apart in a meeting with the rest of the partners. Or you’re going to have somebody who’s kind of a nightmare but has nothing but great things to say about how hard you work and how you respond to things in the meeting.”

Don’t mistake somebody who doesn’t seem kind for the person who’s kind. You gotta do the work and maybe try to figure out what the person needs as the next step.

My husband told me when I was young, “Try to make them like you.” Now, that doesn’t mean that they want to have a beer with you. I’m not really that person that most people say, “I’d like to have a beer with her,” but make them like you. 

Work hard, don’t give attitude, don’t give excuses, and try to figure out the next thing you could do. That’s what I tell associates. Sometimes the person you’re working for is grateful for you to say, “Hey, now that I did the motion, do you think it’s okay if I argue it?” Or “now that the motion’s done, maybe we should think about these depositions.”

And some of the really gifted attorneys that are young that I’ve met, they are on to the next step. You give them one thing, they are off to the races. You’re like, “whoa, that’s fantastic.” It makes your life infinitely easier. So I tell them to think about the next thing, make them like you, and don’t have an attitude.

This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on May 24, 2023.

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