“Agitate . . . Agitate . . . Agitiate”
Today’s 50th anniversary of the Supreme Court decision in Brown vs. Board of Education reminds us that litigation has been a vehicle for civil rights progress in the news media as well as in education.
Shortly before his death in 1895, the great abolitionist and editor Frederick Douglass was reported to have whispered to a young follower, ?Agitate . . . agitate . . . agitate.?
For a workshop by that name at last summer’s convention of the National Association of Black Journalists, moderated by this columnist, a survivor of litigation against a respected news organization prepared these remarks on the pros and cons of filing a lawsuit — which the author considered the most drastic of the options available to effect change. The author cannot be identified on advice of the author’s counsel.
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When You’re Thinking About Suing Your Employer
By (Name withheld)
The decision to file suit against an employer should be made without a flood of emotion. As the survivor of nearly seven years of bitter litigation, I thought I?d share some general thoughts with those of you who have considered taking legal action, or are considering this option now.
1. Taking Legal Action Is Not for the Weak Of Heart
Filing a lawsuit, especially one relating to alleged racial or sexual discrimination, should be done as a last resort. Litigation is an expensive and time-consuming process. It is, by definition, a war of attrition. Unless you are independently wealthy, filing suit against an employer, no matter how egregious the offense, will drain a litigant?s emotional, spiritual, intellectual and financial resources. Companies have far more financial means to defend against litigation, including insurance, which permits them to drag out a suit by years.
The corporate ethos is to do everything to protect the managers, period. And, in doing so, their legal counsel –? both in-house and hired ?– will invariably try everything within their power to discredit the plaintiff. You and your work will be put on trial. So, no matter what contributions you have made, once you have filed suit, every attempt will be made to personally discredit you. The rule applies to both ?liberal? and ?conservative? companies.
Most companies have an established extralegal means ostensibly designed to resolve disputes between management and employees. This process is usually conducted by the head of the human resources department. However, it is not unusual that management will be unfamiliar with conducting such an exercise, since it is rarely used. Many administrative actions by management are often made without respect to the process and can be reversed. Make a point of carefully reading through the relevant portions of your company?s employee handbook –? it could save your job!
Only after the in-house process has been exhausted should legal recourse be seriously contemplated.
As I said, pursuing litigation is not for the faint of heart. It is as painful and debilitating sometimes as a bout with cancer. If you don?t have the courage of your convictions, don?t sue.
2. Assume the Worst; Calculating the Risks
Once you?ve made the decision to file suit, assume the worst-case scenario. This means being exposed to all forms of retribution, including probation, suspension and dismissal. Don?t be surprised at the level of vindictiveness by upper management; expect it. You can also assume that litigation will cause many of your co-workers to isolate you socially, both inside and outside the newsroom. In fact, many of them will regard your suit against the company as a personal affront.
Some of your more misguided colleagues will be asked, or will volunteer, to keep tabs on you. Do not be surprised if your most casual conversations, either in person, online or on the phone, will be monitored. E-mails, if composed or sent on a company computer, are the property of that company. There will be rumors and innuendos made about you. There could also be attempts to provoke you. To protect yourself as much as possible, it is crucial that you be very circumspect in your professional and personal dealings. You will be subject to the corporate version of the Miranda warning: Anything you say or do will be used against you in a court of law.
Also, the journalism industry is exceedingly small. Managers at one company often know the managers at another. Word of your litigation will spread like wildfire, which may have severe professional consequences. Being blackballed within your company and your field should be expected. You may have to find work in another field, at least for the duration of the litigation.
A decline in our careers almost always carries high personal costs. Relationships with a spouse, children, parents, friends or loved ones often suffer. And, in this respect, those who love you will suffer along with you. Only the strongest relationships have a chance of surviving lengthy litigation. It is therefore important to find alternative outlets for your frustration. Beginning a regimen of physical exercise is a healthy and positive alternative.
3. Documentation: Protecting Yourself
Even before a decision is made to file suit against a company, you must begin to carefully document your case. This means collecting every memo, story, version of a story or piece of correspondence, as well as keeping a corroborating journal detailing conversations. The first thing an attorney will ask is for you to construct a chronology, based on thorough documentation. The success or failure of your suit will rely heavily on your providing the relevant documentation. Without it, your chances of prevailing in court will be greatly diminished. And, in fact, many attorneys will decline to represent you if you do not possess sufficient documentation. Provide the best opportunity to defend yourself.
4. Choosing Legal Representation Well
Many legal battles are decided long before a trial date is set. Securing strong legal counsel at the outset is critical. Unfortunately, you get what you pay for. Your company probably has a large, established law firm on retainer. Many of us do not have the resources to pay a large retainer, or fees, which will increase mightily, especially when a trial date draws near.
When looking for counsel, ask those you trust for referrals. The American Bar Association also has a list of attorneys and their specializations. You may also want to seek referrals from friends in the legal profession. Lawyers with trial experience on both sides of the table are extremely valuable.
And, after you have selected an attorney, come quickly to an agreement on fees. Many lawyers will request a retainer up front. But many others will agree to a contingency agreement, an arrangement to be paid once the case has been settled. Acceptable percentages range from at least 30 percent to as high as 40.
The quality of your defense is not determined by the size of a law firm alone. So-called ?boutique? law firms can provide excellent representation, but they are limited in their effectiveness, most often, by their lack of financial resources and their need for cash. Some large firms can seem impersonal. On occasion, a smaller law firm may partner with a larger one. But, in my experience, size does matter.
5. Beware of Friendship
Friendship is among the many costs when involved in litigation. In journalism, as in life, true friends are hard to find. Many of those you may consider friends at the beginning of your litigation will no longer be considered that way near the end. So, at the outset, be your own best friend. If you must place your trust in anyone, trust yourself. Keep your own counsel. This is a lonely existence, but it is the best way to survive.
Many people you consider friends cannot fathom the multifaceted ordeal you are going to undergo. Many will think you are crazy and will say so. Do not be discouraged by this. They simply do not understand your situation. Don?t feel obligated to instruct them on the nuances. Others will seek to betray your most intimate thoughts, so, keep them to yourself as much as possible.
This is not to say that you will be without friendship. In fact, litigation will help clarify who your real friends are. You will discover that they are far less numerous than you thought. If you can count the number of true friends on one hand, consider yourself fortunate.
People must be judged by their deeds, not by their skin color. Many black people or minorities will attempt to undermine you, some of them under the belief that it will help them professionally with their white managers. Black managers are often powerless, ineffectual or incompetent. In my experience, many of those sympathetic to my ordeal were white.
Pursuing litigation over years will be life-altering. Any money you receive will not fairly compensate you for the loss of your career or your friends. But freedom and independence carry costs. Only you can decide what is, or is not, acceptable.
Although I cannot discuss the terms of my settlement, I can say in retrospect that I still would have sued. I filed suit to protect my professional and personal integrity, and for that, I would have paid any price.
Malcolm X once said that sad people don?t do anything but complain. Angry people change things, he added, because they are using their emotion to promote change. You must decide what kind of person you are.
Institutionalized racism is as American as apple pie. As dysfunctional as many newsrooms are, be cognizant that many of them are intended to work the way they do. Any attempt to change them will be met with resistance. But if the numbers and influence of African Americans and other minorities is to increase, it will be litigation, or the threat of litigation, that will drive that change.
Author’s name withheld on advice of counsel