A Time to Heal

by Greg D. Trapp

Braille Monitor

July, 1998

From the Editor: Greg Trapp has been a staff attorney with the Protection and Advocacy System of New Mexico since 1992. Prior to that he was an Equal Opportunity Specialist at the University of New Mexico. In 1993 he taught Disability Law as an adjunct professor at the University of New Mexico School of Law. He presently serves on the Board of Directors of the Albuquerque Chapter of the National Federation of the Blind of New Mexico, serves on the Board of Directors of the National Association of Blind Lawyers, is Chair of the New Mexico Commission for the Blind's Statewide Rehabilitation Advisory Council, and serves on the IDEA State Advisory Panel. He is a frequent contributor to these pages. This is what he says about suing for relief in employment discrimination cases:

My client—I'll call her Susan—sat across the desk from me. Her case had just settled after three years of bitter legal battles. Susan had been genuinely wronged, and she had won a settlement which reflected that fact. Yet as she talked to me, she hardly seemed like a winner. Susan had been forced to sell her home, forgo needed medical treatment for lack of employer health insurance, and ultimately go on disability benefits due to depression and posttraumatic stress disorder. As we talked, I thought about the last three years and considered what lessons might be learned. I recalled the time early in the battle when this client rejected a generous settlement offer, which I had encouraged her to accept. As Susan left my office, she mentioned that settlement offer and said she wished she had taken it. Her lesson is one from which we can all learn: sometimes it is appropriate to avoid or discontinue the fight and move on to a new challenge or opportunity.

Susan's struggles are far from unusual. I have observed many clients go through tremendous emotional upheaval at the loss or potential loss of a job. This is understandable, since a termination is usually viewed as an attack on an individual's character and self-worth. Given the strong emotions that surround employment, it is easy to understand why some people choose to take a highly adversarial path in attempting to resolve employment problems. However, sometimes there are problems for which there are no legal solutions or for which the legal solution might mean winning the battle but losing the war. At the outset of a case I advise my clients to consider the costs of waging such a legal battle. I advise them to weigh all of the costs, professional, financial, physical, and emotional.

The professional costs will largely depend on the nature of the profession, the size of the community, and the career stage of the employee or job seeker. Although illegal under the Americans with Disabilities Act (ADA), retaliation does happen. Knowing this, I sometimes advise employees facing imminent discharge to file an Equal Employment Opportunity Commission (EEOC) complaint. In cases of imminent discharge the employer may retaliate and terminate the employee immediately, which could give my client a stronger case. On the other hand, the employer might be extra careful not to appear to retaliate, which might give my client an opportunity to maintain employment.

Retaliation comes in many forms, subtle and blatant. It can mean employment's being terminated or an employee's being skipped over for promotions, being assigned duties which do not lend themselves to career advancement, or being blackballed and labeled a troublemaker. The possibility of retaliation may not be a serious concern for an older person who is fired near the end of a high-paying career. By contrast, retaliation may be a very real concern for a young person seeking an entry-level position in a close-knit profession such as teaching or counseling, and who was discriminated against during an employment interview.

For the older person in this example, the cost of retaliation is relatively small, and there is a potentially large benefit if the legal battle is successful. However, for the young person in this example there is a real risk of retaliation since the person may acquire a reputation as a troublemaker and since there is probably only a small potential benefit. I have seen people who file successful grievances over relatively small employment issues later turned down for promotion and given less desirable job duties. I am persuaded that at least some of these people would have fared better had they worked within the system and applied the energy they used to fight the system to enhance their employment skills.

The financial costs of initiating an employment-discrimination battle will vary depending on the stage of the fight. For instance, no cost is associated with filing an employment-discrimination complaint with the Equal Employment Opportunity Commission (EEOC), though there is still the possibility of retaliation and the corresponding financial harm which may result. To bring a lawsuit under the ADA, you must first file a complaint with the EEOC. You can allow the EEOC to investigate the complaint, or you may request a right-to-sue letter and file a private lawsuit. The EEOC investigation can easily take a couple of years, and they only find in favor of the employee about three percent of the time.

While there is no cost to file a complaint with the EEOC, filing a private lawsuit can be very expensive. Even if you find an attorney to take a case on a contingent fee, you will still be responsible for paying the costs of the litigation, such as copying, depositions, and expert witnesses. These costs can quickly add up to thousands of dollars. I usually tell my clients that they can expect to incur $5,000 to $10,000 in costs, assuming that the case settles before trial. If the case goes to trial, costs can be much higher, and legal maneuvering can even cause a plaintiff to be responsible for some of the costs of the defendant.

Nevertheless, sometimes the decision to litigate is easy, as in the case of a long-term employee who is fired from a unionized job paying $70,000, but who would have difficulty finding a replacement job which would pay more than $25,000. In assessing the costs, consideration must also be given to the potential financial benefit of a lawsuit. However, news reports of multimillion dollar legal awards can lead to an unrealistic expectation of the financial rewards that might be gained by a lawsuit. I usually tell my clients that litigation is a little like buying a lottery ticket, and that a large award may be possible, though such awards are the exception.

Physical and emotional costs also accompany a legal battle. I have seen litigation turn people who were happy and vivacious into lethargic shells of their former selves, dependent on tranquilizers and anti-depressants. Therefore, I always tell my clients that litigation can be very unhealthy. Even in the best of circumstances, litigation can be extremely stressful. The lawyers for your employer will scrutinize your actions and conduct and will dig for anything which could be used against you. For example, an attorney in a deposition can pry into your past and ask questions which would never be allowed in evidence at trial. If you are seeking compensation for mental pain and suffering, the lawyers will be allowed to ask about your mental health history. If your case includes a claim of sexual harassment, your sexual history can be explored.

In addition, lawsuits are normally open to the public, so in a worst-case scenario, private elements from your personal life could be reported in the papers or on the 6:00 news. If you are suing an employer for whom you are still working, then you must face the added difficulty of working in what will likely be a tense and stressful work environment. Litigation can also have a negative impact on home life and can place a serious strain on a marriage.

Unfortunately, some people who take legal action against their employers are motivated primarily by anger and a desire for revenge. These people usually fail to consider carefully the costs and consequences of their actions. As a result, they may incur an additional, often devastating cost: the cost of thinking and acting in ways that can ultimately destroy the self.

The Rev. Martin Luther King, Jr., eloquently describes this cost:

"Like an unchecked cancer, hate corrodes the personality and eats away at its vital unity. Hate destroys a man's sense of values and his objectivity, causes him to describe the beautiful as ugly and the ugly as beautiful, and to confuse the true with the false and the false with the true. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction."

Despite the difficulties of waging a legal battle over employment discrimination, taking a legal stand can certainly be an appropriate choice in many situations. Nevertheless, one of the options I present to my clients is the option to do nothing. I explain to them that they have been victimized and that waging a legal battle might cause them to be revictimized. Sometimes people need a time to heal. As a blind person, someday you will very likely encounter employment discrimination. How you respond may have lasting effects on your employment career and on many areas of your life