Are You a Whiner?

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I ran across a post on “You’re the Boss”, the New York Times blog on small business issues, titled “How Do You Handle Employee Litigation?” The article reports on a small business owner who had settled several employee lawsuits (not sure what’s going on there!), but decided once to push a case to trial. When he did, not only did the employee fold and take a low offer of $10,000, but he and his lawyer also issued a letter of apology for bringing the lawsuit. The article links to a number of others, all of which have the same basic underlying theme: employee lawsuits are brought by whiners who are merely seeking a handout.

What about you? Are you a whiner? Of the many people who have come into the firm over the years to file a lawsuit, none thought it would be fun or a good way to get a payday. The truth is that most people want to work and would rather do things other than go to court. Sure, some people bring lawsuits without justification, but these lawsuits are rare, and the ones that are brought are weeded out early in the legal process by motions to dismiss or motions for summary judgment. Every lawsuit that I have brought was on behalf of people who were discriminated against, often in truly shocking ways. My clients are not whiners. I’m guessing that you are not a whiner either.

In fact, sometimes businesses fire employees even if they don’t complain about anything. For instance, the US EEOC recently settled a lawsuit against an employer for firing a food server because she had the temerity to get pregnant. This woman did not complain about a thing but still lost her job. This is illegal under the Pregnancy Discrimination Act, which prevents employers from discriminating against employees solely based on a pregnancy.

And before you start feeling sorry for the burden placed on “small businesses,” consider that many federal laws, including the PDA, do not even apply to businesses with fewer than fifteen employees. That’s right: in most states, if you work for an employer with anywhere from one to fourteen employees, your boss can fire you simply because you get pregnant, or even if your spouse gets pregnant.

Consider the story told by this woman describing a friend who was harassed at her job only because she became pregnant. For instance, after she told her boss that she was pregnant, he later asked whether he now had to “open a friggin’ day care.” He then had his wife come to work with the pregnant employee because she would need help in “her condition,” even though the worker had not requested help. Because this was a small business with fewer than fifteen employees, there was nothing the pregnant employee could do.

Look, I get it. Running a small business is difficult. Making payroll is stressful, and having an employee out of commission can cause problems. But this doesn’t justify outrageous treatment from the boss (or his wife).

The irony of the New York Times blog post is that the lawsuits it complains about are brought by attorneys who are small business owners themselves. If the lawyer can’t pay the rent, she can’t maintain a private law practice. This is perhaps the best check against “frivolous” lawsuits. They are expensive and time-consuming for both the attorney and the client. No attorney wants to bring a bad case. It hurts the client, and the lawyer will lose money.

If you are thinking of seeing a lawyer about discrimination at work, you’ll have to endure some of this misguided thinking. But you’ll know the truth, and so will your lawyer. Standing up for justice and proper treatment does not make you a whiner, no matter what your boss or his well-paid defense lawyer may say.