While teaching Employment Law and Employment Discrimination courses at Suffolk University Law School here in Boston, at some point I insert into class discussion my belief that the main ways in which we resolve employment disputes in the U.S. — i.e., complaints lodged with administrative agencies, often followed by hearings and civil litigation — are often deeply stressful, unpleasant, and even traumatizing experiences for litigants.
This is notably so for plaintiffs who are seeking relief for alleged wrongs related to employment, especially when claiming wrongful termination. Lawsuits become a vehicle for messaging anger, fear, hurt, and loss, while translating the impact into mostly monetary terms. Litigation is no picnic for employers, either, who must expend time and money defending themselves.
I’d like to dive into this topic for a bit, because I wish to endorse a deeper conversation about how we can resolve legal issues related to the workplace more humanely and efficiently.
The Law in Shambles
In 2005, Thomas Geoghegan, a highly respected, union-side labor lawyer, penned a thoughtful little book titled The Law in Shambles (Prickly Paradigm Press), in which he saw the U.S. legal system becoming driven by politics, disorder, and rage. He included a brief but important chapter on the law of work that has stuck with me over these many years.
In fact, in my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review, go here for a freely downloadable pdf), I included Geoghegan’s explanation of how the decline in U.S. union membership has impacted dispute resolution in the workplace (footnotes omitted):
…Geoghegan has captured well how the demise of labor unions has led to courts and administrative agencies serving as the primary venues for employment-related dispute resolution. Whereas the grievance process in a union-management setting often contemplates a continuing employment relationship, or perhaps the re-establishment of one, legal process for most non-union workers is so imbued with anger, accusation, and expense that the parties only grow further apart, even if they move closer to a legal resolution of their differences.
In The Law in Shambles, Geoghegan distinguished between resolving differences through internal grievance systems based on contractual rights versus relying upon civil litigation grounded in a personal injury model:
…this tort-type legal system, which replaces contract, is a system that feeds on unpredictability and rage. A white-hot, subjective tort-based system with the threat of “discovery” replaces a cooler, more rational, contract-based one which was modest, and cheap, and kept us from peering, destructively, into one another’s hearts.
Bottom line: Civil litigation can be awful
A couple of years ago, I asked students in my Law and Psychology course to do a group research dive into the psychological effects of civil litigation on parties in lawsuits. We basically confirmed the obvious, namely, that civil litigation is often all-consuming and deeply stressful for the major litigants. At the most severe end, we learned more about “litigation trauma” — i.e., traumatization caused or exacerbated by the processes and experiences of civil litigation — as a collateral and costly result of being a party to a lawsuit.
Furthermore, as Geoghegan aptly suggests, employment litigation, in particular, may quickly get mean and nasty. Especially when the plaintiff is alleging a wrongful termination and/or claiming emotional distress damages, the stakes elevate rapidly and often invasively. In particular, the pre-trial “discovery” process permits deep looks into minute aspects of the plaintiff’s job performance and mental health and the employer’s management practices and operations. Depositions can be weaponized to intimidate and bully the other side.
These practices are baked into the procedural rules governing civil lawsuits. As a result, even successful plaintiffs in employment litigation — those who secure a big settlement or verdict in their favor — are left exhausted, depleted, and traumatized by the years-long experience.
I keep thinking that there must be better ways to resolve these disputes, while still preserving the core rights and interests of workers and employers. I’d like to suggest the following possibilities:
Solutions: Reform employment dispute resolution systems
In my 2009 law review article referenced above, I recommended that we reform the ways in which we resolve employment disputes (again, footnotes omitted):
We must implement more humane, efficient, and procedurally fair ways of resolving employment-related conflicts. The current dispute resolution systems are expensive, time consuming, and emotionally battering for plaintiffs and sometimes for employers as well….
There are promising proposals for reform. For example, for years scholars have been recommending the creation of labor courts that would serve as a single forum for resolving employment disputes, along the lines of systems used in other industrialized nations. One specific possibility is the adoption of the type of employment tribunal system used in the United Kingdom, which starts with a conciliation process, followed by (if necessary) a hearing in which claims are initially heard by a three-person panel. These procedural reforms would bring numerous advantages over the present [U.S.] system, including lower costs to litigants, potentially faster resolution, and consolidation of claims in a single forum.
Solutions: Workers’ compensation for psychological injury
Workers’ compensation is a no-fault insurance system designed to provide payments and medical care to those who suffer work-related injuries and illnesses, based on the severity and length of their disabilities. So long as a worker can show that their injury or illness arose out of, and in the scope of, their employment, they are generally entitled to receive workers’ comp benefits.
Workers’ comp systems have been designed around the specter of physical injuries leading to physical impairments, owing their origins to the days when most people made a living by engaging in physical labor. However, problems often arise when a worker makes a claim for a psychological injury such as PTSD, depression, or anxiety. This is especially so when the cause of the injury is not a physical hazard, such as dangerous machinery, but rather psychological abuse, such as harassment or bullying.
Some workers’ comp systems don’t even cover psychological injuries. Others do, but they require the employee to show that the psychological mistreatment caused the psychological injury. This, in turn, compels the employee to prove that the harassment or bullying actually occurred. This can lead to protracted appeals and even litigation to recover benefits.
If workers’ comp systems were more receptive to claims for psychological injuries, especially those caused by psychological abuse at work, then many workers who are injured in this manner might opt to forgo costly and time-consuming litigation that can have the effect of worsening their emotional harm.
Solutions: More unionization
Yes, I know that most employers oppose unions. They understandably don’t regard more unionization as a “solution.” And no, I don’t claim that every union is a virtuous bastion of protection for its workers. Also, while many employment settings are appropriate for unionization, I recognize that in some sectors and categories of work, union representation brings complications.
That said, unions remain the strongest general source of advocacy and protection on behalf of the average worker. In addition, and more pertinent to the focus here, collective bargaining agreements (CBAs) negotiated between unions and employers typically include grievance and arbitration systems that often handle workplace conflicts and disagreements more quickly, efficiently, and fairly than complaints filed with administrative agencies and courts.
During the 1950s, roughly one-third of the U.S. workforce was unionized. Today, only one-tenth of our workforce is unionized. Thus, an overwhelming share of American workers are heavily dependent upon the civil litigation system for the resolution of legal disputes coming out of their employment.
Solutions: More contract, less tort (?)
In unionized work settings, CBAs usually define the rights and responsibilities of workers and management. A CBA constitutes a contract between labor and management; hence, an alleged violation of a CBA is considered to be a violation of the contract.
Thus, when Thomas Geoghegan refers to employment disputes being resolved through the “cooler,” more rational contract system, rather than by the “white hot” tort system of lawsuits alleging civil wrongs, he’s drawing upon many years of working in the union-management vineyards.
But what if, even in non-unionized work settings, employers had a contractual obligation — by mere existence of the employment relationship — to safeguard employees from mistreatment, including abuses such as discrimination, sexual harassment, and bullying? And what if that contractual obligation included prohibitions against retaliation for workers reporting alleged violations?
This could have the effect of encouraging stronger internal preventive and responses to address such mistreatment. And because legal claims for breach of said contractual obligations would permit court directives to stop and address abusive behaviors (including job reinstatement) and award compensatory damages (e.g., lost income and benefits), medical expenses for physical and psychological harm, and the like, such mandates would have some teeth.
These rights would be grounded in contract rather than tort, which presumably means that emotional distress damages and punitive damages likely would not be available. Perhaps, though, employers would be more likely to investigate complaints of mistreatment, knowing that they have incentives to reduce exposure to compensatory damages, without inviting possibly expensive litigation for the “wild cards” of emotional distress and punitive damages.
As you can see, there are trade-offs in moving towards a more contractually-based model when it comes to damages recoverable in a lawsuit. Even so, the union-management grievance system has demonstrated that various forms of mistreatment, including sexual harassment and bullying, can be effectively addressed even without the threat of huge damage awards. In addition, even in non-union workplaces, employee handbook provisions prohibiting all forms of harassment (including “generalized harassment,” another way of describing bullying) are contractually enforceable in some states and can be grounds for dismissing abusive employees.
Also, meriting further discussion…
As a very broad observation, I’ll simply observe here that the balance of power between employers and workers in the U.S. is strongly slanted towards the former — economically, politically, and legally. This imbalance manifests in many ways, but especially relevant to this discussion is how many employers — especially medium and large businesses and larger government agencies — can afford to hire a lot more legal firepower than can the average worker in dealing with employment disputes.
Some employers do try to do the right thing when faced with a report of alleged misconduct or mistreatment. We should recognize that and encourage more to do the same. But especially for the employers who will not take the higher road, the availability of legal relief is necessary and important. This is especially the case in non-union work settings, where there is no countervailing source of collective power to confront management authority.
Please keep this bigger picture in mind when considering our overall topic.
In closing
There is no perfect solution here. When all is said and done, perhaps our current systems for resolving employment disputes represent the best we can do to balance out all of the interests. But I think we can and should do better. I hope these considerations have contributed to what I think should be a more compelling and active dialogue in the U.S.
