{"id":54099,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-tough-road-ahead-in-the-lawsuit-against-sc-for-anti-gay-discrimination-the-plain-truth-about-plaintiffs.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-tough-road-ahead-in-the-lawsuit-against-sc-for-anti-gay-discrimination-the-plain-truth-about-plaintiffs","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-tough-road-ahead-in-the-lawsuit-against-sc-for-anti-gay-discrimination-the-plain-truth-about-plaintiffs.html","title":{"rendered":"The Tough Road Ahead in the Lawsuit against S&C for Anti-Gay Discrimination The Plain Truth about Plaintiffs"},"content":{"rendered":"\n
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The Tough Road Ahead in the Lawsuit against S&C for Anti-Gay Discrimination: The Plain Truth about Plaintiffs<\/h1><\/td>\n <\/tr>\n

By SCOTT MOSS<\/h2><\/a><\/td>\n <\/tr>\n

Tuesday, Jan. 23, 2007<\/td>\n\n <\/tr>\n <\/table>\n

For all the talk of wacky harassment lawsuits and litigation-fearful employers, in practice it turns out it\u2019s amazingly hard to sue one\u2019s employer for discrimination or harassment.<\/p>\n\n

That\u2019s my experience as an employment lawyer — and I believe that\u2019s the rude lesson a hotshot young lawyer is learning, having sued his own law firm. <\/p>\n\n

We don\u2019t yet know whether the evidence will support Aaron Charney\u2019s claim that partners at elite law firm Sullivan & Cromwell perpetrated anti-gay harassment, spread false rumors about his sex life, and, when he complained, subverted his once-promising career with a campaign of retaliation against him for speaking up.\u00a0 But week one of Charney v. Sullivan & Cromwell<\/i><\/a> shows that this high-profile case provides a remarkably typical illustration of the problems an employment discrimination plaintiff faces. <\/p>\n\n \n\n\n

\u201cIs There a Lawyer in the House?\u201d\u00a0 Not Necessarily, When Damages Are Low<\/b><\/p>\n\n

Reportedly unable to find a lawyer, Charney is representing himself.\u00a0 Readers may wonder:\u00a0 In a country with over a million lawyers (and lawyer TV ads), how could it be hard to find a lawyer? <\/p>\n\n

The reason lawyers may be scarce in cases like Charney\u2019s is that they know employment discrimination and harassment cases are no piece of cake.\u00a0 Plaintiffs win less often than in other kinds of lawsuits, and victories usually are underwhelming: winners\u2019 damages awards usually are too low to make litigation a worthwhile investment for a paying client, or for a contingency-fee lawyer.\u00a0 <\/p>\n\n

Emotional distress damages in such cases rarely get much beyond several thousand dollars, and sizeable punitive damages awards are uncommon.\u00a0 Courts do award winners their attorney\u2019s fees, but this rarely factors into the settlements that are reached in virtually all cases. <\/p>\n\n

The big-ticket item is lost wages, and here\u2019s the catch: If you\u2019re \u201cjust\u201d harassed, and not fired, you typically haven\u2019t lost any wages at all.\u00a0 <\/p>\n\n

This may be a key reason S&C put Charney on paid<\/u> leave.\u00a0 That option avoided starting the clock ticking on the kind of high lost-wages damages award that could attract a top employment lawyer to the case.\u00a0 As a result, Charney had to draft his complaint himself, with mixed results. <\/p>\n\n\n\n

This is No Place for Amateurs: How Even a Smart, Talented Attorney Can Go Astray<\/b><\/p>\n\n

Charney\u2019s no dummy \u2013 he\u2019s an honors Columbia Law School grad.\u00a0 Thus, it\u2019s no surprise that, for the work of an amateur, his complaint is pretty impressive. Unfortunately, though, Charney isn\u2019t an employment lawyer, and it shows.\u00a0 Most of the flaws sound technical, but they truly matter \u2013 for the claims that are pled, are those that are litigated (unless the complaint is amended: Hint, hint).\u00a0<\/p> \n\n

For example, Charney claims a “pattern or practice” of discrimination — a term that typically means discrimination against many<\/u> employees.\u00a0 But the acts the complaint describes show, instead, a great deal of discrimination against Charney alone<\/u>.<\/p>\n\n

What Charney should have claimed, instead, was a “hostile work environment” that was \u201cdiscriminatory and retaliatory,\u201d and sufficiently \u201csevere or pervasive\u201d to alter his employment conditions.\u00a0 These are the elements the plaintiff must allege for a basic “harassment”-type claim.<\/p>\n\n

Of course, a sympathetic judge should be able to tell what Charney meant, and rule on the claim he meant to describe.\u00a0 But you never want to walk into court hoping that the randomly-drawn judge is sympathetic enough to your allegations to overlook the flaws of your papers.<\/p> \n\n

Stick a Fork in His Career, It\u2019s Done \u2013 and the Ugliness Has Barely Begun<\/b><\/p> \n\n

At some point, Charney will<\/u> be gone from S&C.\u00a0 In theory, whether he wins or loses his case, the anti-retaliation laws make it illegal for another law firm to decline to hire him because he\u2019d sued \u2013 but that and a token won\u2019t get him more than a subway ride.\u00a0 <\/p>\n\n

I\u2019ve heard recruiters call an otherwise impressive professional who\u2019s filed a discrimination lawsuit \u201cradioactive.\u201d\u00a0 Firms don\u2019t have to tell an employee why they passed on hiring him, which is one reason failure-to-hire lawsuits are, the statistics show, rarely filed. <\/p>\n\n

This all sounds ugly, but if the case isn\u2019t resolved early, it will get uglier still:\u00a0 The real intrusiveness comes in the discovery and evidence-gathering phase.\u00a0 Most likely, S&C will get Charney\u2019s medical and psychological records (if any).\u00a0 In addition, Charney will most likely get the sensitive personnel file documents of both his peers and his alleged harassers. <\/p>\n\n

Even uglier are the depositions.\u00a0 Imagine the tension when S&C gets a full day (or two) to take Charney\u2019s testimony under oath, and Charney gets a day each with everyone he\u2019s accused.\u00a0 And lawyers make the worst<\/u> witnesses; The West Wing <\/i>did a great job showing Bradley Whitford\u2019s cocky lawyer character sit down to testify at a deposition, thinking he\u2019d \u201cwin\u201d every argument \u2013 a bad strategy that he executed badly, falling into the trap of losing his temper at hostile questions. <\/p>\n\n

Why Plaintiffs Sue for Discrimination and Harassment \u2013 Despite All the Obstacles <\/b> <\/p>\n\n

So why would anyone volunteer for this kind of misery?\u00a0 None of the possibilities is a rosy scenario: <\/p>\n\n

First, Charney may simply be clueless about the level of ugliness to which this will predictably descend.\u00a0\u00a0 However, he could have educated himself quickly by paying a lawyer for a one-time consultation. <\/p>\n\n

Second, Charney may simply want justice at any cost.\u00a0 If he truly was harassed, and did suffer retaliation at S&C \u2013 already a severe career setback — then he may figure he has little to lose.\u00a0 He may also be an idealist who wants to protect others against homophobia and the setbacks he has suffered. <\/p>\n\n

Third, as is possible in any such case, Charney may simply have concocted these allegations to extort a settlement or cover up workplace failures. <\/p>\n\n

Which type of plaintiff is Charney: clueless, idealistic, or cynical?\u00a0\u00a0 That\u2019s the drama of discrimination cases: you rarely can tell at the start.\u00a0 <\/p>\n\n

We\u2019ll just have to wait and see \u2013 or, more likely, never know.\u00a0 That\u2019s because most parties reach confidential settlements requiring silence about both the case and the settlement amount. <\/p>\n\n

That may not be the most flattering picture of the American legal system.\u00a0 But it could be a great deal worse.\u00a0 To paraphrase Winston Churchill\u2019s defense of democracy, the American litigation system is the worst system possible \u2013 except for all the other ones that have been tried. <\/p>\n\n\n<\/span>\n\n

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\n\n\n<\/a>\nScott Moss is a professor at Marquette University Law School who practiced plaintiff-side employment law at Outten & Golden LLP in New York City.\n

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