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Helpful Articles
Articles that shed some insight into bad workplace situations and helpful tips on how to fight back.
The people that work to demean us ARE in fact themselves insecure and not very good at what they do.
Let Their Words Do the Talking
Verbal Cues to Detect Deception
by John R. “Jack” Schafer, Ph.D. Published on March 18, 2011
The Hate Model – The Psychopathology of Hate
Not all insecure people are haters, but all haters are insecure people.
Hate masks personal insecurities. Not all insecure people are haters, but all haters are insecure people. Hate elevates the hater above the hated. Haters cannot stop hating without exposing their personal insecurities. Haters can only stop hating when they face their insecurities.
The Haters Gather:
Haters rarely hate alone. They feel compelled, almost driven, to entreat others to hate as they do. Peer validation bolsters a sense of self-worth and, at the same time, prevents introspection, which reveals personal insecurities. Individuals who are otherwise ineffective become empowered when they join groups, which also provide anonymity and diminished accountability.
Continued @ The Seven-Stage Hate Model: The Psychopathology of Hate | Psychology Today
More on EchoStar’s questionable litigation tactics
Posted by Geoffrey Manne on November 24, 2010
The day before yesterday I posted on the fascinating and important TiVo v. EchoStar case. Today I wanted to follow up with some, let’s say, color commentary on EchoStar’s litigation tactics. This isn’t dispositive, of course, but it does seem to add some insight into the notion that EchoStar is taking advantage of questionable litigation tactics rather than respecting property rights in its dealings with TiVo.
You’ll recall that, in the case, EchoStar lost at trial, ignored the judge’s order to stop infringing, was held in contempt, and continues infringing today. This has resulted in numerous legal proceedings, all managing to keep TiVo bogged down in litigation as EchoStar continues to misappropriate TiVo’s intellectual property. Although EchoStar has accrued substantial legal expenses—and damage awards from both a jury and the judge—they are dwarfed by its DVR revenues.
It turns out that courtroom shenanigans are no stranger to EchoStar.
Just last week, a state trial judge in Manhattan found that EchoStar exhibited grossly negligent behavior in a case involving Cablevision’s VOOM subsidiary. The language in VOOM v. EchoStar characterized EchoStar’s misconduct (allowing critical e-mail evidence to be destroyed) in an exceedingly harsh manner, holding that EchoStar “systematically destroyed evidence in direct violation of the law and in the face of a ruling by a federal court that criticized EchoStar for the same bad-faith conduct . . . .” The judge went on to characterize EchoStar as engaging in “procedural gamesmanship” and noted “EchoStar’s pattern of questionable — and, at times, blatantly improper — litigation tactics.”
The court further described EchoStar’s conduct as “precisely the type of offensive conduct that cannot be tolerated by the courts.” It rebuked “EchoStar’s last-minute finagling with expert reports, believing that it can play fast and loose with the rules of procedure in order to enhance its litigation posture . . . throughout this litigation, EchoStar has been hoist by its own petard.”
Arguably EchoStar has made this type of legal strategy part of its business model.
In the TiVo case, like many others, EchoStar’s gamesmanship and its propensity to abuse the law has become a central issue. In an amicus brief submitted by agricultural organizations in the TiVo case, the groups argue: “EchoStar’s conduct in this case . . . and in other cases, displays a propensity to flout court orders,” and goes on to cite several examples of this behavior, including:
- breaking promises to the court (CBS Broad. Inc. v. EchoStarCommc’ns Corp., 276 F. Supp. 2d 1237, 1246 (S.D. Fl. 2003));
- patently unmeritorious claims of error (CBS Broadcasting Inc. v. EchoStar Commc’ns Corp., 450 F.3d 505, 523, 526 (11th Cir. 2006));
- misleading and coercive communication (Air Commun. & Satellite Inc. v. Echostar Satellite Corp., 38 P.3d 1246, 1254 (Colo. 2002));
- and even frivolous actions (Dominion Video Satellite, Inc. v. EchoStar Satellite L.L.C., 430 F.3d 1269, 1278 (10th Cir. 2005)).
- Further, in a 2004 case, one federal judge claimed that “EchoStar’s action rises to the level of conscious wrongdoing” (EchoStar Satellite Corp. v. Brockbank Ins. Servs., No. 00-MK-1513, 2004 U.S. Dist. LEXIS 31130 (D. Colo. Feb. 4, 2004)),
- another chided EchoStar for failing “in its duty of candor . . . .We admonish EchoStar for this abuse of process” (EchoStar Satellite Corp. v. Young Broad. Inc., 16 F.C.C.R. 15070, 15076 (Aug. 2, 2001)).
Of course any good lawyer advocating for his client may push the envelope, and some of these procedural matters are governed by standards that are less than clear. But this is a worrisome list of excesses, and should certainly raise eyebrows in the TiVo case.
Of a piece with this, in addition to the problem of EchoStar’s overall strategy of delay, avoidance and misappropriation in the TiVo case, is also EchoStar’s fantastic claim that upholding the lower court’s contempt proceeding would inflict serious hardship on the firm, causing it to lose a substantial fraction of its present and future customer base (to the tune of $90 million per month). Unfortunately, this customer base was built, indisputably (that is, undisputed even by EchoStar which does not challenge the underlying infringement finding), on the back of TiVo’s misappropriated technology. It is like the child who murders her parents and then throws herself on the mercy of the court as an orphan. It seems absurd to listen to EchoStar claim hardship from the prospect of losing business it never earned in the first place.
As Richard Epstein noted in his amicus brief in the case:
In effect EchoStar’s argument is that once it has built up a large business on the back of someone else’s patents, it should be allowed to reap those profits for the indefinite future. The size of its own illicit gains becomes the tool it deftly uses to extend its illicit activity indefinitely. This approach creates the perverse outcome that the longer the defendant is able to wiggle away from legal sanctions, the stronger is its case to continue on its unlawful path. EchoStar’s claims of large future losses prove only one thing: that its large monthly losses make the damages awarded for TiVo in 2006 look puny relative to the continuing harm from EchoStar’s misbehavior.
The VOOM holding is just the latest in a serial pattern of courtroom distractions and legal delays. It seems EchoStar has made a practice out of disobeying court orders and pushing the legal system to the limits.....
Sexual Harassment
Sexual Harassment
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
RETALIATION AT WORK:
Retaliation
All of the laws that the EEOC enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).
For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC.
Retaliation & Work Situations
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
FACTS ABOUT WINNING A CASE (LABOR CASE)
The damages a court can award depend on the type of claim. Damages include all of the financial and emotional losses a person suffers as the result of an employment dispute. In most state and federal discrimination cases, the employee is entitled to receive the following types of damages: back pay; front pay; lost benefits such as health, vacation, sick leave, and pension; reinstatement; compensatory and punitive damages.
Back pay and benefits are among the types of damages most typically awarded in successful employment cases. Back pay includes all of the wages, salary, bonuses, commissions, and benefits lost because of an unlawful dismissal or discrimination, minus any amount the employee was able to earn in the interim. This offset is known as "mitigation," which is explained in more detail on our site's page on mitigation.
Back pay includes much more than your salary or wages. It includes interest, overtime, shift differentials, and raises you would have received. The value of employer-provided housing lost because of the discrimination is part of a back pay award. Back pay is calculated from the date of the discrimination or job loss to the date of the court's decision.
All of the benefits an individual lost because of the discrimination or unlawful action are included in the amount of back pay. For example, you should be paid for unused earned vacation time plus vacation time accrued up to the court's decision. If your company allots a certain number of sick days per year, you are entitled to the value for the number of unused sick days you have earned. If the company pays for health or life insurance benefits, you should receive the value of the premiums or benefits the company would have paid had you continued to be employed. Your former employer may also be required to pay any unreimbursed medical expenses which would have been covered by the employer's health plan.
Back pay also includes all forms of pension benefits that you have earned or accrued. Adjustment to pension benefits made during the time period of your case would also be included. Essentially, anything that was part of the compensation and benefits provided by your employer may be part of the back pay award.
Reinstating employees into the jobs they lost is the preferred remedy by courts in discrimination cases, and may be a remedy in other kinds of cases as well. Sometimes, however, courts will not order reinstatement because of the now-hostile relationship between the former employer and employee, or because there is no longer a job available.
If a court believes that reinstatement is not appropriate given the circumstances, it generally awards "front pay," which is the amount of compensation and benefits the court views necessary to make up for the difference in pay that the employee would have earned in the future. Front pay includes all lost benefits, just as back pay does.
The purpose behind compensatory money damages is that they are intended to make you "whole." Compensatory damages are also called actual damages. In employment cases, they refer to the damages that are harder to measure, such as the following:
- Emotional distress
- Pain and suffering (such as grief, fright, anxiety, humiliation, and depression)
- Permanent disability
- Mental impairment
- Medical bills
Punitive damages are damages awarded in cases of malicious wrongdoing to punish or deter the wrongdoer or deter others from behaving similarly. In employment cases, punitive damages are designed to punish the employer and make it an example for others, where it can be shown that the employer intentionally discriminated with malice or reckless indifference.
Employers who adopt an anti-discrimination policy, effectively enforce the policy, and thoroughly document the policy's strict enforcement may use the policy as a "good-faith" defense against punitive damage awards, as well as decrease the likelihood that discriminatory conduct will occur in the first place.
Punitive damages are not available against the federal, state or local governments, but only against private employers. Many employers choose to settle cases in which their exposure to punitive damages is significant, to avoid the potentially large financial liability as well as the negative publicity resulting from a public award of punitive damages imposed by a jury.
However, when punitive damages are awarded, the amount can be significant.
Liquidated damages are a type of punitive damages, where the penalty amount for a proven violation of a law or a contract provision is designated in advance.
Under the law, a penalty amount such as "double damages" or "treble damages" is a common liquidated damages penalty. For example, while the Age Discrimination in Employment Act (ADEA) and the Fair Labor Standards Act (FLSA) do not provide for punitive damages, liquidated damages of up to twice the amount of back pay may be awarded in the event of a "willful" violation, if the employee proves that employer knowingly violated the ADEA or acted in "reckless disregard" of its provisions, or willfully violated the FLSA.
If you did reasonably look for other work, you will not be denied damages for lost wages just because your efforts were unsuccessful and even if your efforts could have been "more exhaustive." For more information, see our site's page on mitigation.
In most cases, employees who have lost their jobs due to discrimination are entitled to their lost wages and benefits. Employees can also seek punitive and compensatory damages in cases alleging discrimination based on race, sex, religion, national origin, color, creed, or disability under Title VII. Intentional actions by an employer causing the embarrassment, mental distress or humiliation of a person because of race or sex will support an award of punitive damages. An employer's failure to take action to protect employees from racial or ethnic slurs of fellow employees can also entitle the employee to punitive damages.
Individuals who win their cases and can prove that the discrimination was "willful" can get liquidated damages, which is double the back pay award. Employees alleging retaliation can also get compensatory damages.
Under the federal discrimination laws and most state laws, the employer must pay your attorneys' reasonable fees if you prevail in your case. However, if you lose, a court would not order you to pay the employer's attorneys' fees and expenses.
Courts typically award prejudgment interest as an essential part of the back pay award. Prejudgment interest serves to compensate for the loss of the use of money you would have had absent the discrimination or loss of your job. The courts have substantial discretion in the calculation of prejudgment interest, including the interest rates to apply and the manner of compounding the interest.
Retaliation claims costly... Here's why...
You’ve no doubt heard that retaliation claims are now the most common complaints filed with the EEOC. Here’s a real-life example of why — and how expensive these cases can turn out to be for employers.
Albert Thomas, an African-American, worked for an Alabama chemical company for over 25 years.
But then, he alleged, he came upon several white rags cut in the form of a Ku Klux Klan hood in his workspace. When he pointed the hood out to his supervisor, Thomas claimed, the manager reacted by holding up the hood and making inappropriate comments and gestures.
Subsequently, Thomas was accused of violating a company policy and was demoted. A white employee replaced him.
Thomas filed a racial discrimination charge with the EEOC — which resulted in company officials threatening to “fire his black —,” he claimed.
A short time later, Thomas was terminated.
Couldn’t prove bias
The case went before a federal jury. The jury found Thomas couldn’t prove his racial discrimination claims.
But he was successful in proving the company fired him in retaliation for filing those claims. The jury awarded him $314,000 in damages.
The takeaway
This case is a perfect example of the reason retaliation charges have gone through the roof: It’s a lot easier to prove retaliation than discrimination.
And it’s a good reminder of the importance of conducting a through investigation of every complaint — and making sure not to take any adverse action against a complaining employee without absolutely airtight reasons for doing so.
In the real world, this may well mean bending over backwards to not give the impression of retaliation. That flexibility might just keep an employer out of court.
Cite: Thomas v. Chemical Lime Company
Copyright 2011 Stop Workplace Abuse. All rights reserved.
