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The focus of Susan Nell Rowe’s career has been helping businesses against workplace labor disputes. She doesn’t see the courtroom as much as she did when her law career began.

Instead, Rowe said she now concentrates much of her efforts on helping employers prevent suits in the first place. She helps organize the standards and practices that respect employee rights while allowing businesses to make necessary personnel decisions.

The job puts Rowe in the front row of some ugly scenarios — from discrimination and sexual harassment suits to mass layoffs. Over the years, she said she has learned to divorce her personal feelings about a situation from the need to provide legal interpretation.

What drew you to workplace legal issues?

I started out on the low end of the totem poll in my practice … So I started doing it because we had a client need for it. But I stayed with it because employment litigation is a very people-oriented kind of practice. You have to be able to understand interpersonal dynamics that go on in the work force. If you’re going to be a good counselor for a client, you have to be a good listener and understand their business. I think have that skill set.

Have you ever represented a employer whose actions you disagreed with?

That happens relatively frequently. I’ll look at the situation and say maybe I wouldn’t have done it personally like that. Maybe I would have given a little more time or notice. But the rules of law actually are, as long the employer isn’t discriminating, it can make all those decisions at whatever level it sees fit. We have the business judgment rule that allows the employer to make its mind up. And juries historically are instructed that they are not supposed to second-guess (the employer).

So you may actually disagree with your client, but because of that legal standard, it’s not a problem?

It isn’t. Sometimes, a lawyer can be called upon before the action is taken … and then I might say, "Wait, before you terminate them, let me tell you how a jury might feel about that. They might feel you weren’t fair enough."

… But sometimes we don’t get called until a lawsuit has been filed. At that point, you think to yourself, "Maybe I would’ve done it differently." But you say to the client, "Well, it’s already happened and we have to go forward and explain why you took the step that you took."

With unemployment currently so high, are you anticipating an increase in discrimination suits?

I think so, but it’s hard to say. … Those claims might not be as attractive to make in an economy where we know there are just a lot of people who are being laid off. … In typical times it’s probably easier for an employee to come forward and say I was singled out because no one else was let go. But if you’re going forward when a lot of people have been let go throughout your industry and throughout the country, it’s probably a little harder to say your termination was because of your protected status.

Is there anything you can prepare for by studying past cases of economic downturn?

Probably not because this is sort of unprecedented. In the late 1980s, there was a downturn, and we had some cases that came out of that during the time period. But I think things are so different now because of how bad the economy is, it’s hard to really make that comparison.

… One thing I think employers have to do is, if they are going to be involved in downsizing, they have to have business reasons for the decisions they make and they can justify it from a business perspective. They often need to go back through after they’ve made an initial determination and see if it looks like a standard has been used that looks like it has a disparate impact on people in protected classes — women, minorities, people over 40. If it looks like there is a disparate impact, the employer needs to be sure that it can justify the decision for business reasons. If not, the employer should consider using another criteria that doesn’t have a disparate impact.

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Filed under: term by Fred