AUTOPSY OF A TERMINAL EMPLOYMENT RELATIONSHIP (A Postclaim Root-Cause Analysis Can Reveal Valuable Lessons)

After being fired, Florence, a salesperson at one of my client’s computer stores, filed a claim for sex discrimination and retaliation. Two years later, her case settled.

The amount of time and money this case consumed greatly displeased the CEO. As we left the plaintiff attorney’s office where we finalized the settlement, he turned to me and said, “What do we need to do to make sure this doesn’t happen again?”

We scheduled a meeting of his store managers where I played “coroner” and conducted an “autopsy” of Florence’s lawsuit. We looked for three types of lessons:

1. How the claim could have been prevented altogether

2. How the claim might have been nipped in the bud instead of taking two years

3. What other insights into the company’s processes and culture might be revealed

At the meeting, I pointed out the evidence that supported management’s decision to fire Florence. This included low sales productivity, her often crude ways of speaking to employees and customers, and the discovery that she had a personal side business she’d failed to disclose in violation of company policy.

The evidence showed that problems with Florence’s performance had existed for years, and that because of her offensive behavior, two employees had quit and several customers had switched to competitors. I said to the managers, “So firing this employee should have been a no-brainer, right?”

I then turned to the arrows in Florence’s quiver. They included lack of progressive discipline and documentation of her performance and behavior problems.

Rather than confront Florence, the manager of her store, Bob, adopted an avoidance approach to dealing with her. A big reason was his fear of a sex-discrimination claim, which Florence alluded to in her own crass fashion: “Admit it Bob. You and the guys have a tough time working with someone who doesn’t have a you-know-what between her legs.”

Although Florence never brought a gender complaint to the attention of the human resources department, she claimed Bob had told her, “Talking to HR wouldn’t be good for your future.” Although he denied saying it, Bob’s credibility was undermined by the fact that he’d never informed HR about Florence’s complaints, performance problems, or offensive behavior.

Florence denied ever having received the policy regarding employees having side businesses, and there was no convincing proof to show that she had.

Another important autopsy point: After Florence asserted her claim but before she’d hired an attorney, she offered to drop her claim in exchange for three months’ severance pay. However, Bob had insisted that her claim was “worthless.” As a result, there was no early scrutiny of the claim’s strengths and weaknesses, and no negotiation.

When the claim finally did settle, the price plus accumulated attorneys’ fees and costs added up to nearly $200,000, the equivalent of over two years’ severance pay. And this price didn’t include the numerous hours spent by company employees in legal proceedings.

Additional points covered in our session:

image The bigger the potential problem, the sooner it needs to be dealt with. To maximize the value of your human resources department, let it know early on when you’re having an employee relations issue so it can help you develop and execute a game plan. Don’t wait until the problem has become intolerable.

image Offensive speech such as Florence’s should never be tolerated, even if the person using it claims to be a victim. Don’t fall for “the best defense is a good offense.”

image If a policy is important, the company should have a specific plan or practice to communicate it and to show that it has been communicated.

image When a claim is filed, an early and hard look should be taken. Otherwise, an opportunity for cost-effective settlement may be lost.

Following this session, management made several changes, including overhauling its training-and-development program and policy-implementation practices. Steps included creating guidelines for human resources-operations management interaction that would increase collaboration, communication-skills training in how to confront employee relations challenges, and use of the Same Day Summary documentation tool (“Texas Wes”).

The results? The company reported improved productivity and accountability as well as a welcome long stretch where it remained claims free.


Conducting “autopsies” of employment claims is good for company business and bad for legal business.

If you’ve been involved in an employment claim that was resolved, you probably wanted nothing more than to put the experience behind you as quickly as possible. Most employers react this way, treating the resolved claim as a kidney stone that finally passed.

Yet this tendency should be resisted. As this story shows, there’s an enormous upside to using that painful experience in the U.S. legal system as a catalyst for growth and positive change.

Every lawsuit or significant claim I dealt with contained valuable lessons for employers. These lessons aren’t just confined to what employers can do to avoid future claims. They include insights into how employers can run their businesses better and get a better return on their human capital.

Workplace claims open a window into how your employees function in relation to the company’s mission, values, and goals. Before the trail goes cold, identify takeaways for better practice. In addition, use the recently concluded claim to generate a sense of urgency and momentum for constructive change.

You paid dearly for your experience in the U.S. legal system. Why not get your money’s worth?

(Telltale Signs You Employ a “Profile Plaintiff”)

An immigrant from Eastern Europe worked in my client’s information systems (IS) department as a systems analyst. Dmitri had a prickly personality. When problems arose, he quickly pointed his finger at others.

For example, when the IS director inquired about a customer complaint, Dmitri instantly became defensive: “It’s not my fault! I did nothing wrong! Those people did not follow my instructions. They are stupid!”

Dmitri tended to keep to himself. When he did interact with other employees, it was typically to complain about deficient working conditions, management, customers, and coworkers.

Sometimes he complained about America. “You people are spoiled. You don’t know what real work is.” Another subject was his treatment as an immigrant. “They say America is a big melting pot. Some pot! I get mistreated here because I’m from another country and my English is maybe not 100 percent perfect. My wife gets mistreated too.”

Without prompting, Dmitri brought up problems in his marriage. The reaction of his coworkers to hearing sensitive, personal life details from this otherwise cold and aloof man: “too much information.”

Employees suspected that Dmitri had a drinking problem. He appeared visibly intoxicated at a company social function. In addition, one employee reported to his supervisor that he’d observed Dmitri behaving erratically at work and smelling of alcohol. However, no investigation was conducted.

Dmitri had enrolled in the company’s educational support program through which he sought a computer science degree at a local college. After submitting the paperwork, Dmitri mentioned to the IS director that he intended to apply for a student loan even though his educational expenses would be fully covered by his employer. When asked why, Dmitri responded, “I’m going to use the money to pay off my car loan—better interest rate.”

Although Dmitri’s plan struck the manager as less than ethical and possibly even illegal, he figured this was a matter between Dmitri and the lender, not an issue for him or the company.

In the meantime, Dmitri was assigned a new supervisor, Pamela. Pamela felt management had been too lenient with Dmitri regarding his behavior. Things were going to change.

For the first time, Dmitri received counseling. Pamela told him: “You need to be less defensive. Stop blaming other people when things go wrong. Focus instead on improving your communication skills with employees and customers.”

Although Pamela had not taken formal disciplinary action against him, Dmitri was incensed. His anger increased exponentially three months later when he read his annual performance review. Although Pamela rated his performance as acceptable overall, she noted deficits, including in his treatment of others.

Dmitri became so mad reading this criticism he got up from his desk and shouted, “I can’t work with such idiots! I am done with this company!” With that, he gathered his personal belongings and stormed out the door.

Pamela was shocked when she first learned the news. “Oh my goodness!” she said to a coworker, “I was only trying to help him improve.” That evening, she called him at home. By then, Dmitri had received an earful from his wife about his “impetuous and irresponsible decision that will hurt our children.”

Pamela apologized for having upset him and explained, “I was only trying to help you be more successful.” Although Dmitri still felt aggrieved and said so, he had calmed down considerably.

“Would you reconsider your decision to quit?” Pamela asked.

Dmitri responded with a lecture on the importance of “treating people from other countries with respect.” He added that he would accept her offer.

Dmitri returned to work the next morning. All was not well, however. He displayed an empowered sense of victimhood. In his mind, he had humbled management. His problematic attitude got worse.

Eventually, Pamela initiated disciplinary proceedings against him, which sparked fresh outrage and complaints that he was being “discriminated against because I am a man from another country.”

Dmitri’s behavior continued to spiral downward and reached the point where management felt compelled to end his employment. Dmitri responded by filing claims of retaliation, harassment, and discrimination based on gender and national origin.

We ended up in court. Ultimately, we prevailed in showing that Dmitri’s “maleness” and Eastern European origin had nothing to do with his discharge. However, the case went on much longer than my client expected because of documentation gaps and inconsistency in management’s position that Dmitri was a long-time problem yet formal discipline had been administered only near the end of his employment.

By the time the case was dismissed, my client had paid a high price in time, money, and energy. Pamela had paid a high price in prolonged anxiety and stress, which impaired her ability to lead her department.

When the verdict came down in my client’s favor, no high fives were exchanged. Instead, the client’s reaction was a mixture of relief and exhaustion.


Beware of signs that you employ a Profile Plaintiff.

Long before the existence of the Transportation Security Administration, I wrote an article called “The Profile Plaintiff.” In it, I made an analogy to airport security measures adopted in the 1970s following a spate of skyjackings by dissident groups. Airline passengers were starting to dread hearing messages over the plane’s intercom like, “Ladies and gentlemen, you have boarded a flight from Chicago to New York—via Havana.”

Airline security responded by creating profiles of passengers considered disproportionately likely to be skyjackers. Analyzing people who hijacked or attempted to hijack airplanes, they identified common characteristics to create the profile skyjacker. When a passenger met the profile, heightened security measures were implemented.

Based on having litigated numerous workplace disputes, I applied a similar methodology to employees disproportionately likely to sue their employers. From this, I came up with the Profile Plaintiff. Some characteristics may seem obvious, but some may not. Dmitri illustrated several profile plaintiff characteristics that management typically overlooks:

image Has a chip-on-the-shoulder attitude. Dmitri never admited mistakes or acknowledged fault. Instead, he continually pointed the blame finger at others.

image Complains of mistreatment due to protected class status. Dmitri’s maleness and Eastern European origin may not have been the most compelling of legally protected classifications. However, they were enough for him to assert victim status and use it as a basis for a retaliation claim.

image Is alternatively aloof and volatile. Dmitri had little interest in communicating with others, unless it was to vent over his latest sense of grievance.

image Brings up problems from personal life. Dmitri didn’t have a monopoly on personal life challenges. The difference was Dmitri’s urge to share them with coworkers even though they weren’t his personal friends or confidants.

image Has alcohol or substance-abuse issues. Employees with drinking or substance-abuse problems, as Dmitri may have had, disproportionately show up as plaintiffs.

image Is dishonest. When personally cheated, people see a red flag. Many, however, miss the connection between an employee’s willingness to cheat others and, when it’s in his or her interest, to cheat their company. Dmitri’s obtaining a student loan on false pretenses may not have hurt the company, but it provided an important clue about his character, a clue the IS director missed.

image Resigns in anger but is allowed to retract the resignation. A telltale sign of future trouble is the employee who quits in a huff yet is allowed to return. Pamela’s reaction to Dmitri’s indignant “I’m out of here!” is not unusual. It’s almost Pavlovian. The manager thinks, “His quitting will be a reflection on me,” and tries talking the employee out of it. Yet in a calm, thoughtful moment, the manager would have acknowledged that the company would be better off without that employee. The result? More employment trouble and aggravation, and in some cases such as Dmitri’s, an eventual messy termination followed by a lawsuit.

One profile characteristic standing alone doesn’t signify a Profile Plaintiff. However, as with Dmitri, often many boxes are checked without management’s lightbulb going on. As a result, it misses opportunities to manage the employee out of the workplace with relatively little or no trouble.

The solution is not to count boxes and fire somebody. Rather, it’s to promptly and directly confront inappropriate employee behavior, promptly investigate evidence of misconduct, and let high-strung, high-maintenance employees accept the consequences of their rashness. Profile Plaintiffs can be managed out of a workplace with a surprising degree of efficacy. It takes a combination of early recognition and gumption to fix problems before they get worse.

(Beware of Conditions That Problematic Employees Can Use Against You)

Fred was vice president of sales at a publicly traded medical-products company based in the southeast United States. As the company grew and expanded into new markets, Marissa, the company’s CEO, increasingly had reservations about Fred’s suitability for his position. Other members of the executive team had expressed concerns to Marissa about Fred’s lack of vision, initiative, and leadership, and believed an upgrade would be needed for the company’s long-term prosperity.

After mulling the matter over for a while, Marissa called Fred into her office. “Unfortunately, Fred,” she said, “as we’ve grown, I don’t believe you’re the right person for the vice president job. I’m planning to conduct a national search for your successor. When the new vice president is hired, we can discuss whether there might still be a position for you here. However, if you want to start looking for another job in the meantime, that’s fine with me.”

Following this meeting, Fred wrote a letter to the chairman of the board of directors. In it, he alleged that Marissa had subjected him to unwelcome sexual conduct. Fred also alleged that Marissa had pressured him to make end-of-quarter sales to distributors that weren’t viable and to allow the distributors to return the products for a full refund if they couldn’t be sold. Fred claimed this was done to artificially inflate revenue and profitability numbers to shareholders.

Fred said in his letter, “I have resisted Marissa’s sexual advances as well as her directives to violate the law. As a result, she’s become hostile to me and is now threatening my job.”

After Fred’s letter, the board of directors hired an independent investigator to assess the validity of Fred’s allegations. The investigator interviewed dozens of people and reviewed numerous documents and email correspondence.

Regarding Fred’s sexual harassment claim, there was plenty of evidence that Marissa was a hugger. However, by all accounts, she hugged people of both genders indiscriminately and never hugged anyone in the “Velcro” manner Fred described. Moreover, there was no evidence that Fred ever complained about or expressed discomfort with her behavior. In fact, one employee recalled him complaining that Marissa failed to hug him after she returned from a business trip. Fred had asked the employee, “Do you think she’s mad at me?”

Regarding Fred’s allegation of improper business practices, there was evidence of questionable end-of-quarter sales followed by refunds in the next quarter. However, the evidence showed that Fred participated in this activity and didn’t resist, much less blow the whistle until faced with termination for unrelated reasons.

The investigation concluded with a finding that Fred’s complaints of sexual harassment and retaliation were not credible. Not long thereafter, the company fired him. Fred responded by filing claims with two government agencies.

Both agencies investigated Fred’s claims and scrutinized the investigator’s findings. Neither agency disputed the conclusion that Fred’s treatment was due to legitimate business reasons, not unlawful retaliation.

End of story, right?


After the employment issues ended, a government agency continued investigating the company’s end-of-quarter sales practices. Eventually, it brought criminal charges against Marissa. Fred testified for the prosecution. Following a lengthy trial, a jury convicted her on multiple felony counts. Prison time followed, and her previously distinguished career came to a ruinous end.


This story serves as a cautionary tale. Marissa was not an evil or corrupt person. However, as a CEO who had been lionized for her success, she felt increasing pressure to meet others’ high expectations. This pressure tempted her down a slippery slope. Little by little, and without appreciating the consequences, she was picking up steam and heading toward the cliff. A self check-in might have saved her, but it didn’t come until too late.

When leaders slip below fully ethical, principled behavior in their own conduct, it’s difficult to hold employees accountable for their behavior. As Marissa learned the hard way, it can also be dangerous. Before looking out of your front window, observing and assessing others, it’s useful to first take a look in the mirror. In your own behavior, have you set the example you wish to see in others?


In “An Employee Engagement Lesson Learned from a Volunteer Experience,” I identified connecting on a personal level as one of the three pillars of engaged workplace relationships. There are limits, however. Although there was nothing sexual in Marissa’s hugging, it did create vulnerability that a disgruntled employee could exploit. More importantly, during the investigation, some employees said they didn’t like being hugged but were uncomfortable saying so to the company’s CEO. Employees also said that Marissa’s hugging practice gave rise to employee speculation. Since she was less apt to hug an out-of-favor employee, employees would speculate about who was or wasn’t in her doghouse.

Save your hugs for family and friends. In the workplace, and especially when you occupy a position of power, your hugs can produce unintended and undesirable consequences. There are other ways to connect personally. This book describes a few. None require putting your arms around your employees.

(Try an Alternative to Permission or Forgiveness Called “Per-Giveness”)

When I became managing shareholder of a large law firm’s Portland and Seattle offices, I had a new managerial experience. In the past, I had founded and managed a law firm and had served as president and chief administrative officer of a nonprofit corporation with a largely supportive, deferential board. In those circumstances, I had been a boss without really having a boss. This time, I was a boss with a boss, or even bosses.

This experience presented me with fresh challenges that middle managers know well. The situation reminded me of a former college athletics director. During his press conference to announce his resignation, he said, “Unfortunately, my responsibility greatly exceeded my authority.”

I struggled with the fact that I had to manage these offices in the here and now but often needed authority that was thousands of miles away and preoccupied with other things. This translated into delay, indecision, and frustration, not only on my part but on those I managed who awaited direction from me.

Necessity being the mother of invention, I developed a way to combat this challenge. If you recall the Same Day Summary tool (“Texas Wes”), you could say this one was more of a Same Day Preview. I called it per-giveness: per(mission) + (for)giveness. First there would be an assessment of the decision I contemplated making. In which of these three categories did it belong?

1. Permission: Prior authorization from the boss is a necessity. The decision is too important. Without authorization, I don’t go forward.

2. Forgiveness: As the saying goes, “Just do it.” If things go wrong and my boss doesn’t like what I did, I’ll dust off a MIDAS Touch apology (“Apology Trilogy”).

3. Per-giveness: I’ll let the boss know (a) what I plan to do, (b) why I think it’s a good idea, and (c) when I plan to do it. The boss will have an opportunity to weigh in, but it’s not required.

For per-giveness, email came in handy. I’d write my boss a message, saying I plan to do X by Y date or time and add the reason. I wouldn’t ask for his opinion. Instead, I’d conclude the message with something like, “Let me know if you have questions or wish to discuss this beforehand.” If I didn’t hear anything by Y, I implemented X. That simple.

The tool worked so well for me with my superiors that I taught it to a boss who had a boss: me. This was my office administrator. She managed the office staff and reported to me. Per-giveness became part of our delegation dialogue.

Certain decisions fell in the permission category. For example: “Jathan, I think the office needs to be remodeled. I have a bid of $47,000. May I go forward?” Others fell under forgiveness: “I authorized two hours of secretarial overtime yesterday evening.” Still others fell in between, per-giveness: “Jathan, at my next staff meeting on Monday morning, I plan to announce a new protocol regarding vacation scheduling. It’s intended to __________. Let me know if you have questions or wish to discuss this ahead of time.”

My office administrator and I periodically assessed the types of decisions that belonged in each category and made adjustments. How did this help us? From my perspective as her boss, it promoted trust, confidence, and efficiency. I never had to worry, “What’s she up to now?” Yet I wasn’t bogged down or distracted having to make lots of decisions just to keep things running.

Also, I had a new option for decisions that fell in the gray area. When my office administrator gave notice of an impending action, I wasn’t required either to endorse or reject her recommended action. If I was on the fence, I could read her per-giveness message and do nothing but let her act as she thinks appropriate.

From her standpoint, this three-category decision-making approach created a nice balance: management without micromanagement. Moreover, it eliminated the frustrating and even enervating experience of sending repeated requests to a boss who doesn’t respond.


Per-giveness messages are simple. State the action you want to take, your reasons for doing so, and when you plan to act. Don’t ask for your boss’s opinion, only that the boss let you know if he or she has questions or wishes to discuss your planned action. If you hear nothing by the date and time specified, act.

As an employee, per-giveness will create for you a healthy balance between absentee management and micromanagement. You’ll have more freedom to act with reassurance that you’re on the same page with your boss. As a boss, per-giveness will keep you informed. You’ll have an opportunity to weigh in but aren’t required to do so. You can delegate responsibility without a hands-off-versus-micromanagement dichotomy. Also, if you’re struggling with “Yes,” “No,” or “Maybe,” you have another option: Quietly let your employee make the call. No more stewing in indecision while leaving your employee hanging.

Assuming you’re persuaded to use the tool, I’ll give you your first per-giveness message:

Hi Boss,

Please read the story about “per-giveness” in this Hard-Won Wisdom book that I’ve flagged for you. I plan to implement this tool starting next week. Let me know if you have questions or would like to discuss this concept ahead of time.

Best, You

(Put These Concepts and Tools to Work Sooner Rather Than Later)

I had been working with a group of restaurant managers on improving their leadership skills. After a two-month interval, I returned for a follow-up program.

In the previous workshop, I’d taught attendees the EAR method of listening. Readers of “If You Want Engagement, Lead by Listening” will recall that “E” stands for “explore” (open-ended questions), “A” is for “acknowledge” (confirming your understanding with the person you’re listening to), and “R” is for “response” (which comes last.)

As I began the follow-up program, one of the managers interrupted me. “Jathan,” he said. “Before you get started, I have a question.”

“Yes,” I said.

With an edge in his voice, he said, “Remember when you were here two months ago and taught us that EAR listening thing?”

”Yes,” I replied.

“Do you remember saying it’s useful if we’re dealing with employees who are upset?”

“Yes, I believe I said something along those lines.”

His voice rising, the manager said, “Well I tried it last Friday, and it backfired!”

With a catch in my throat, I said, “What happened?”

“It was a busy Friday evening. One of our patrons, a big spender but somewhat of a pompous jerk, didn’t get the table he wanted. He took it out on the hostess, a young gal who did a good job for us.

“I wasn’t there at the time, but she came to me later and told me about the incident. I could see she was still upset so I thought that EAR thing might be useful. I asked her a bunch of questions about what happened: what she said, what he said, what the reservation book had in it, and so on. I then responded with what I thought was a good response.

“Instead, she got mad at me and said, ‘You don’t really care about the employee do you? You only care about the customer!’

“I got a little angry myself and told her she was totally wrong. Things got more heated. Soon she burst into tears and quit, right there on the spot, leaving me shorthanded on a crowded Friday night and now having to replace a good employee.”

With dripping sarcasm, he added, “Thanks for your help, Jathan!”

Instinctively, my eyes searched for the exit. However, a woman who attended the prior session rescued me. She said to the manager, “I heard the Explore part and I heard your Response. However, I didn’t hear the Acknowledge part where you confirmed your understanding about what had made her upset. Did you do that?”

The manager looked puzzled. “I don’t remember,” he said. “Maybe I skipped that part. Oops!”

I didn’t have to run for the exit after all.


First of all, it’s the EAR method not the ERR method, which is what this manager mistakenly applied. Instead of confirming his understanding with his employee before responding, he made an assumption. She took exception to it and made her own assumption about him (cares only about customers, not employees), and they were off to the races.

The manager made another and even more basic mistake. Consider the timing. He learned the EAR listening method two months before ever attempting to use it, even though the tool’s designed to be used in daily communication. Instead, he held off until faced with an especially challenging situation with elevated emotions. Given the delay, is it any surprise he got it wrong?

I now tell my workshop attendees, “If you wait two months to try something you learn today and it doesn’t work, don’t complain to me. You violated the warranty!”

Studies show that we start forgetting almost as quickly as we learn. This means new skills should be practiced as soon as possible, preferably within 72 hours. Otherwise, the risk of omitting or misapplying a crucial detail goes up dramatically. It’s a use-it-(soon)-or-lose-it proposition.

Although you can return to the book for a refresher, I encourage you to apply the 72-hour rule. Pick something you learned from the book that resonates with you. Perhaps it’s the EAR method, the Triple Two, or Per-giveness. Perhaps it’s the What/Why Ratio, the Period/Question-Mark Ratio, or the Same Day Summary. Perhaps it’s the Star Profile, MIDAS Touch apology, or Monks Technique. Whatever it is, put it to work now.

Motivation without action doesn’t last. Neither does action without results. However, when you combine all three, you can achieve sustained meaningful change.

Here are questions to get you going. I encourage you to answer them in writing.

image Having read this book, what concepts or tools strike you as worthy of using?

image What specific steps will you commit to take, and by when?

image What results do you expect to see?

That writing will serve as your first roadmap in moving from theory to practice to results. Have a great journey!

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