Guide to Handling Workplace Discrimination

Every week, I encounter new potential clients who have fallen victim to workplace discrimination.  Among other topics, unlawful conduct includes Age Discrimination, Disability Discrimination, Injury Discrimination, National Origin Discrimination, Pregnancy Discrimination, Race Discrimination, Religious Discrimination, Retaliation, Sex Discrimination, and Sexual Harassment.  Sometimes, it is impossible for me to help.  Often, people wait too long to speak out or fail to preserve their claim.  Sitting back and letting others treat you unlawfully is not the right approach to take.  Below is my quick guide for dealing with employment discrimination in Missouri.

Step 1 – Review Company Policy

Look up your employee handbook that you probably haven’t thought about since getting hired or being handed the latest revision.  Often, these will have procedures to follow in the event of workplace misconduct.  If they do, follow them.

Step 2 – Report to your Employer

Let your direct supervisor and/or manager know what happened, and do so in writing if possible.  Give him/her the important facts.  Once you have put management on notice, they should investigate your claim.

Step 3 – Follow-up with HR

See if they investigated your complaint, and find out what they determined and what remedial measures are being taken.

Step 4 – Seek Legal Representation

If you have experienced the treatment, reported it pursuant to company policy, and nothing has been done to remedy the situation, you need to contact an employment law attorney.  You should also contact counsel if your employer has retaliated against you for making a claim.  Your lawyer will work with you to properly file your charge of discrimination with state and federal agencies.

TIP:  Please document your experience as well as possible.  This can make your case down the road.

Wadler v. Bio-Rad: In-House Counsel as Whistleblower

Last month, a jury in the U.S. District Court for the Northern District of California entered a verdict awarding $8 million in damages to the former general counsel (Sanford Wadler) of Bio-Rad Laboratories, a life-sciences company headquartered in the San Francisco area.  Wadler claimed that he was wrongfully terminated and retaliated against for reporting his suspicion to an audit committee that Bio-Rad had violated the Foreign Corrupt Practices Act (FCPA).  One topic at issue was whether Wadler could use documents and information protected by attorney-client privilege to put on his case against his former employer.

The Court found that Bio-Rad waived its claim to attorney-client privilege, and therefore, the Court admitted the evidence, overruling Bio-Rad’s objection.  In its ruling, the Court noted that other items provided by Bio-Rad during the case’s discovery phase contained a presentation, a complaint, and other communications that should have been protected by the attorney-client privilege.  And, in providing these during discovery, Bio-Rad expressly waived its claim to privilege.  By doing so, this opened the door for Wadler to use otherwise privileged information that bolstered his claim at trial.

Additionally, the court noted another important takeaway.  One of the reasons Bio-Rad gave for Wadler’s employment termination was that he failed to perform his job adequately.  The Court stated that this reason created an implied waiver to the privilege.  So, even if the Court had ruled that Bio-Rad had not expressly waived privilege by offering the above discovery, the fact that Wadler was fired for failing to perform his job adequately would have been enough to overrule the objection.

If you are company management, this case should serve as a warning that in-house company counsel shouldn’t be treated differently from other potential whistleblowers.  This creates yet another reason for companies to rely more heavily on outside counsel, as their rights and position as non-employees of the company are much different.