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Managing Your Firm

Law Firm Risk Management: Avoid This Common Title VII Violation

By Brent E. Pelton

Managing people is tough, and employment issues are among the thorniest that law firm managers must face. Here’s advice on law firm risk management from a managing partner who also represents those disgruntled employees.

For the law firm managing partner, administrator or practice group leader, stress and conflict seem to come with the territory. After all, law firms are generally staffed with intelligent, high-achieving individuals with expectations about how they and others should be treated in all manner of employment, from hiring, compensation, working conditions, technology tools, parental leave — the list sometimes seems endless.

And then there is the squeaky wheel, the timekeeper who never seems satisfied with all the firm is doing and plans to do.

Handle situations of perceived unfairness with care, for they can quickly spin out of control. Here are a few observations and tips from an employment lawyer who also manages a law firm.

Millennials and Gen Z Have a Unique Outlook

As an employer, you have probably reflected on the fact that millennials (ages 24-39) are now the largest single segment of the U.S. workforce, with Gen Z coming on fast. This younger and dominant cohort has specific and somewhat differing workplace expectations regarding fairness and work-life harmony than previous generations. Flexible working arrangements and responsiveness to workplace issues are high on the list of expectations.

There Is Discrimination at Work

The Society for Human Resource Management (SHRM) is the largest professional association of human resources professionals. In June 2020, SHRM surveyed over 2,500 workers and human resources managers in the United States about discrimination at work. The sobering conclusion of the SHRM survey is that “There is clearly widespread disillusionment with organizational action on diversity, equity and inclusion that transcends racial lines.”

Eye-opening findings from the survey include:

  • 49% of Black HR professionals believe race or ethnicity discrimination exists in their workplace, compared with 13% of white professionals and 21% of all HR professionals.
  • Similar discrepancies exist in responses to age and gender discrimination questions, with 34% of Black HR professionals seeing discrimination, compared with 20% of white HR managers who do.
  • 61% of Black HR professionals see incivility (rude comments, slights, etc.) in their workplace, compared with 44% of white professionals.
  • 68% of Black HR professionals agree with the statement, “My organization is not doing enough to provide opportunities for Black employees”; 35% of white and 41% of all HR professionals agreed with the statement.

The Most Common Title VII Violation Is Retaliation

According to the Equal Employment Opportunity Commission, retaliation is annually the most common Title VII charge, comprising over 55% of all charges in 2020. A retaliation claim usually arises after a complaint of a different kind, such as harassment, discrimination or unfairly applied policies. The retaliation can take the form of termination, demotion, discipline, reassignment, shunning, reduction of pay, issuing a negative press release — or any other actions that would dissuade the average person from making a claim.

Law Firms Are Not Exempt

As reported in the ABA Journal in February, U.S. District Judge Randolph Moss of the District of Columbia allowed two married former Jones Day associates to add a retaliation claim to their bias lawsuit over the firm’s parental leave policy. The retaliation claim is based on a firm press release about the lawsuit after it was filed.

The plaintiffs say the firm’s press release falsely asserted, among other things, that:

  • The husband was not fired for opposing the parental leave policy.
  • The husband showed “poor judgment, a lack of courtesy to his colleagues, personal immaturity, and a disinterest in pursuing his career at Jones Day.”
  • The wife’s claims were not made in good faith.
  • The wife’s billable hours were below expectations.

According to the ABA Journal article, Jones Day said it published the press release to defend its reputation from the plaintiffs’ well-publicized attack on the firm.

Manage the Risk of Retaliation

Don’t underestimate the importance of risk management when it comes to retaliation. Here’s my advice for law firm managers:

  • Listen for the squeaky wheels and have your oil can ready for deployment. Be prepared to compromise and understand.
  • However reasonable and logical it may seem, digging in on a position in an employment situation rarely yields a lasting solution.
  • Keep people engaged and communicating; ignoring concerns of team members is never a good strategy. People who are ignored will find a way to get relief, whether through a complaint, poor work performance, leaving for another job, recruiting others for their cause, and so on. You should always encourage people to speak with you, not others, about the issues.
  • Without “naming and shaming” the individual raising issues, be sure that management colleagues are aware there is an issue and what the strategy is to address it. The individuals who work with the aggrieved employee are in the best position to protect you from claims of retaliation. Beware, however, that these same people also present the largest risk of taking action that can be seen as retaliatory. So, be sure they are tuned in and sensitive but not turned against the individual. Walking this especially fine line is what management is all about, and employment issues are among the thorniest that law firm managers must address.
  • Finally, get advice from other lawyers you know and respect, and keep your ear especially tuned to your millennial and Gen Z colleagues — they are the future.

(P.S. Don’t issue a press release!) 

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Brent E Pelton Brent E. Pelton

Brent Pelton is a partner at Pelton Graham in New York City. His practice focuses on representing employees alleging violations of the Fair Labor Standards Act (FLSA) and its state law counterparts, employees who have been subject to sexual harassment and other forms of workplace discrimination. Brent has served as lead counsel or co-lead counsel on FLSA collective actions and other class actions against some of the largest companies in the country. He is admitted to the New York and California bars.

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