The Tough Road Ahead in the Lawsuit against S&C for Anti-Gay Discrimination: The Plain Truth about Plaintiffs

By SCOTT MOSS
Tuesday, Jan. 23, 2007

For all the talk of wacky harassment lawsuits and litigation-fearful employers, in practice it turns out it’s amazingly hard to sue one’s employer for discrimination or harassment.

That’s my experience as an employment lawyer -- and I believe that’s the rude lesson a hotshot young lawyer is learning, having sued his own law firm.

We don’t yet know whether the evidence will support Aaron Charney’s claim that partners at elite law firm Sullivan & Cromwell perpetrated anti-gay harassment, spread false rumors about his sex life, and, when he complained, subverted his once-promising career with a campaign of retaliation against him for speaking up.  But week one of Charney v. Sullivan & Cromwell shows that this high-profile case provides a remarkably typical illustration of the problems an employment discrimination plaintiff faces.

“Is There a Lawyer in the House?”  Not Necessarily, When Damages Are Low

Reportedly unable to find a lawyer, Charney is representing himself.  Readers may wonder:  In a country with over a million lawyers (and lawyer TV ads), how could it be hard to find a lawyer?

The reason lawyers may be scarce in cases like Charney’s is that they know employment discrimination and harassment cases are no piece of cake.  Plaintiffs win less often than in other kinds of lawsuits, and victories usually are underwhelming: winners’ damages awards usually are too low to make litigation a worthwhile investment for a paying client, or for a contingency-fee lawyer. 

Emotional distress damages in such cases rarely get much beyond several thousand dollars, and sizeable punitive damages awards are uncommon.  Courts do award winners their attorney’s fees, but this rarely factors into the settlements that are reached in virtually all cases.

The big-ticket item is lost wages, and here’s the catch: If you’re “just” harassed, and not fired, you typically haven’t lost any wages at all. 

This may be a key reason S&C put Charney on paid leave.  That option avoided starting the clock ticking on the kind of high lost-wages damages award that could attract a top employment lawyer to the case.  As a result, Charney had to draft his complaint himself, with mixed results.

This is No Place for Amateurs: How Even a Smart, Talented Attorney Can Go Astray

Charney’s no dummy – he’s an honors Columbia Law School grad.  Thus, it’s no surprise that, for the work of an amateur, his complaint is pretty impressive. Unfortunately, though, Charney isn’t an employment lawyer, and it shows.  Most of the flaws sound technical, but they truly matter – for the claims that are pled, are those that are litigated (unless the complaint is amended: Hint, hint). 

For example, Charney claims a "pattern or practice" of discrimination -- a term that typically means discrimination against many employees.  But the acts the complaint describes show, instead, a great deal of discrimination against Charney alone.

What Charney should have claimed, instead, was a "hostile work environment" that was “discriminatory and retaliatory,” and sufficiently “severe or pervasive” to alter his employment conditions.  These are the elements the plaintiff must allege for a basic "harassment"-type claim.

Of course, a sympathetic judge should be able to tell what Charney meant, and rule on the claim he meant to describe.  But you never want to walk into court hoping that the randomly-drawn judge is sympathetic enough to your allegations to overlook the flaws of your papers.

Stick a Fork in His Career, It’s Done – and the Ugliness Has Barely Begun

At some point, Charney will be gone from S&C.  In theory, whether he wins or loses his case, the anti-retaliation laws make it illegal for another law firm to decline to hire him because he’d sued – but that and a token won’t get him more than a subway ride. 

I’ve heard recruiters call an otherwise impressive professional who’s filed a discrimination lawsuit “radioactive.”  Firms don’t have to tell an employee why they passed on hiring him, which is one reason failure-to-hire lawsuits are, the statistics show, rarely filed.

This all sounds ugly, but if the case isn’t resolved early, it will get uglier still:  The real intrusiveness comes in the discovery and evidence-gathering phase.  Most likely, S&C will get Charney’s medical and psychological records (if any).  In addition, Charney will most likely get the sensitive personnel file documents of both his peers and his alleged harassers.

Even uglier are the depositions.  Imagine the tension when S&C gets a full day (or two) to take Charney’s testimony under oath, and Charney gets a day each with everyone he’s accused.  And lawyers make the worst witnesses; The West Wing did a great job showing Bradley Whitford’s cocky lawyer character sit down to testify at a deposition, thinking he’d “win” every argument – a bad strategy that he executed badly, falling into the trap of losing his temper at hostile questions.

Why Plaintiffs Sue for Discrimination and Harassment – Despite All the Obstacles

So why would anyone volunteer for this kind of misery?  None of the possibilities is a rosy scenario:

First, Charney may simply be clueless about the level of ugliness to which this will predictably descend.   However, he could have educated himself quickly by paying a lawyer for a one-time consultation.

Second, Charney may simply want justice at any cost.  If he truly was harassed, and did suffer retaliation at S&C – already a severe career setback -- then he may figure he has little to lose.  He may also be an idealist who wants to protect others against homophobia and the setbacks he has suffered.

Third, as is possible in any such case, Charney may simply have concocted these allegations to extort a settlement or cover up workplace failures.

Which type of plaintiff is Charney: clueless, idealistic, or cynical?   That’s the drama of discrimination cases: you rarely can tell at the start. 

We’ll just have to wait and see – or, more likely, never know.  That’s because most parties reach confidential settlements requiring silence about both the case and the settlement amount.

That may not be the most flattering picture of the American legal system.  But it could be a great deal worse.  To paraphrase Winston Churchill’s defense of democracy, the American litigation system is the worst system possible – except for all the other ones that have been tried.


Scott Moss is a professor at Marquette University Law School who practiced plaintiff-side employment law at Outten & Golden LLP in New York City.

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