Tell Me a Story (And Make It a Good One)

Tell Me a Story (And Make It a Good One)

If you spent any time in legal news circles over the past few weeks, you’re probably familiar with the DLA Piper case. And if you’re saying, “I’m actually normal and I read this blog exactly because I don’t spend my time in legal news circles” . . . cool, cool – here’s the basic premise. A woman is hired at a large law firm as a senior associate. Eleven months into her tenure, she discloses she is pregnant and requested maternity leave. A few weeks later, she is fired. Senior associate says things like, “this feels wrong.” She sues for pregnancy discrimination.  

The case went all the way to a jury trial and . . . the law firm won. 

Law firm DLA Piper defeats ex-lawyer’s pregnancy bias lawsuit at trial 

Why did the firm win? Because their story checked out (. . . . eventually, in front of a jury, after a week of trial, but we digress). Multiple partners testified to documented performance issues that predated the pregnancy disclosure. The story was coherent, specific, and – most importantly – believable. And so one takeaway from this case is that DLA Piper won because they were able to tell a better story than the plaintiff-employee. “Underperforming employee is terminated less than one year on the job after failing to improve following multiple written violations and failing to meet the company’s clearly outlined expectations” is a good story. 

But there’s another perspective, and that is that DLA Piper found itself in this situation because they told a bad story. “Employer fires employee a few weeks after her request for maternity leave for similar performance issues that existed before the request for maternity leave” is a bad story.  

So much of the risk management in employment law defense hinges on telling a good story. And this is important because it’s America and you will absolutely be sued. Not if, when; and thus the question is whether when you get there, your story holds up. DLA Piper’s did. Not every employer’s does – some spectacularly so, and they’re later used mockingly in legal blog posts as cautionary tales. More on this later. 

Let’s discuss progressive discipline, because it’s where a lot of these stories get built – or fall apart. Progressive discipline generally looks something like this: 

1. Employee violates a company policy in a bad-but-not-egregious way. Employer gives a verbal warning. Employee and employer both acknowledge the situation and move on, ideally with documentation that this happened.  

2. Employee continues to violate the same or a similar policy in a still-bad, still-not-egregious way. Employer gives a written warning – so you know it’s serious. More documentation. More acknowledgment. Maybe some language about expectations going forward.  

3. Employee continues. At this point the employer, having now warned the employee at least twice (and documented all occurrences), is permitted to have a feeling about it. The conduct – previously deemed “bad but manageable” – is now, in light of the pattern, deemed egregious and unmanageable. PIP issued. Termination on the table. Everyone is having a bad time. 

This is a good model! It creates a narrative arc. It shows that concerns were raised contemporaneously with the conduct, escalated appropriately, and communicated directly to the employee. When you get to litigation (and again, you totally will because you will totally be sued) you want to be the defendant that has receipts. It may be a boring story (this is ok – you’re not trying to create the next K-Pop Demon Hunter), but it’ll be a good story because it makes sense. Judges and juries like stories that make sense. We’ve even met some members of the plaintiffs’ bar who appreciate a sensible story. (Allegedly.) 

That model works because the story writes itself as you go. The problem is when something interrupts the narrative mid-draft. And that is exactly what happens when, somewhere in that discipline progression, the employee does something that is protected. Takes FMLA leave. Files an HR complaint. Discloses a pregnancy. At that point – and we cannot stress this enough – we don’t recommend engaging in revisionist history and retroactively upgrading the severity of prior conduct. “Did we say that prior violation was not egregious? Ooph! Silly us – we actually meant it was incredibly egregious.” In the biz, we have a name for this behavior: pretext. The timing of the discipline has to be consistent with the timing of the policy violation. Period. Finito. Full stop. 

And here, as promised, is one of those cautionary tales. 

If you are going to terminate an employee – particularly one who is either the sole member of a protected group on your team or who has recently engaged in protected activity – your reason should be credible, grounded in objective facts, and not cause a reasonable person to immediately wonder whether they should speak with an attorney. This seems like a genuinely low bar. And yet . . . 

Consider: you have an employee who has worked for you for nearly two years. Never written up. Never counseled. Never told – not once, not ever – that anyone at the company had a concern about the employee’s performance. On a Thursday, the employee discloses to the employee’s manager that she is transgender. The following Monday, she arrives to find the front door – which presumably had been unlocked for the prior twenty months of the employee’s employment – is locked. The employee is directed to the back entrance, and is handed a termination letter informing the employee that the decision was made due to – and we are quoting directly here – “bringing morale down.” 

(We swear these are the actual facts and nothing has been altered for purposes of this blog. Look – here’s the case.) 

We are genuinely not sure who greenlit “that dang pronoun talk is bringing the whole team down” as the official termination rationale – but also, two business days?? “We had to immediately fire an employee with a spotless nearly two-year record because the morale declined so precipitously in two business days following the employee’s disclosure that they are transgender” is a really bad story! 

That employer is now heading into discovery. At some point, someone is going to sit across from a plaintiff’s attorney and try to explain what “bringing morale down” means, when it started, and why nobody mentioned it to the employee in twenty-three months. And while we’d love to be a fly on that wall, you do not want to be in that room. Build the story before you need it. If you’d like help with that, you know where to find us.  

In the meantime, enjoy those Justin Timberlake memes, y’all! Have a wonderful weekend. As always, if you’ve got questions, you know we’ve got answers.

~ The W + K Team