Jerry Maatman Published in National Underwriter Property & Casualty "New Plaintiff Tactics Push EPLI Envelope"
03/01/2007
The February 19 issue of National Underwriter Property & Casualty includes Jerry's article, "New Plaintiff Tactics Push EPLI Envelope," in which he writes: "In the modern workplace, discrimination typically manifests itself in subtle forms. Corporate managers rarely utter discriminatory remarks or act in an overtly discriminatory manner. If an executive is foolhardy enough to act overtly discriminatory, however, employers often have no alternative but to terminate the executive and to make amends to affected workers, thereby eliminating the conditions which led to litigation. It is for this reason that employment discrimination litigation now generally involves circumstantial evidence. Plaintiff lawyers must prove a negative - that the only explanation for the treatment of their client is discrimination. To do this, plaintiffs typically attempt to prove their cases circumstantially, by creating doubt about the employer's claimed reason for the personnel decision at issue. With increasing frequency, however, plaintiffs' counsel in employment litigation uses a new tactic to demonstrate bias. Their theory is that of "unconscious bias" . . . an employer's decision-makers will inevitably make personnel decisions that favors others like them "because they cannot help themselves."
