Why the 'Equal Opportunity Jerk' Defense Should Be a Last Resort for Employers

Parker Poe Adams & Bernstein LLP
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Parker Poe Adams & Bernstein LLP

When we sit down with an employer to get their reaction to an EEOC charge or lawsuit accusing a manager of discriminating against an employee, the employer often responds that yes, the manager treated the plaintiff horribly, but he does that to everyone he supervises. In other words, the alleged treatment was not based on a discriminatory motive because the manager treats everyone he supervises in the same bullying manner. We call this the “Equal Opportunity Jerk” (or stronger language) defense. In order to prevail on the discrimination claim, the plaintiff must show that the alleged conduct was motivated by her membership in a protected classification.
 
Why is this litigation tactic looked upon poorly by defense counsel? First, the employer basically admits that the employee was mistreated. The question of motivation for the bad acts is typically a jury question, meaning that a judge will not resolve the case before trial. Juries are notoriously unpredictable, and when faced with a situation of admitted abuse of the plaintiff, many jurors may decide to punish the employer for not protecting her, even if the evidence of discriminatory malice is weak.
 
For these and other reasons, we counsel employers not to put up with bullying or abusive treatment from managers, even if we are able to extricate the company from the immediate legal threat. Apart from the obvious employee relations issues, these kinds of management practices are litigation bait. Sometimes employees understandably attribute the manager’s ugly behavior to differences in the parties’ race, gender, religion, etc. Eventually, one of these mistreated employees will pursue legal claims based on this suspicion.
 
Employers aware of bullying behavior by managers should react in a prompt and decisive way to make clear to the offending manager that this type of treatment will not be tolerated, regardless of that manager’s overall work performance. Supervisors unable to immediately correct these issues should be separated from employment. A number of municipalities and a few states have adopted anti-bullying laws that provide direct remedies for generally abusive workplace behavior. Even in the absence of these legal protections, employers should take independent action to end workplace abuses – for legal, business, and ethical reasons.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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