Lawyer David Linesch talks about job discrimination and whistle-blower suits.
By SCOTT BARANCIK
Published December 15, 2003
PALM HARBOR - Lawyer David Linesch has some simple advice on how to fire an employee: gently.
Don't hover while he packs his personal belongings. Don't forbid him to say goodbye to co-workers. And unless he poses a threat, don't humiliate him by having armed guards escort him out.
"If you want your employee" to sue you, Linesch says, "treat him like a thief the day you fire him."
Linesch, 46, ought to know. A lawyer who represents workers in discrimination cases, he says it's often how a worker is let go that drives litigation.
He's seen the battles from both sides. After law school, he spent nine years representing businesses in labor disputes for a Tampa law firm. An opportunity to switch sides led to his current practice in Palm Harbor, where he is the sole lawyer but has four legal assistants.
"Having buried the bodies," he says, "I know how to dig them up."
Linesch says one of his proudest accomplishments was a class-action gender discrimination lawsuit against Kash 'n Karry. The grocery chain settled the case in August for $3.1-million.
His lowest moments? Telling a distraught worker he can't help. "There's a lot of really coarse, rude and unfair conduct that's not illegal," Linesch says.
In an interview with the St. Petersburg Times, the native of Dayton, Ohio, discussed the meaninglessness of the phrase "equal opportunity employer" and how whistle-blower laws are turning individual workers into "private attorneys general." Here are excerpts from the interview:
Q. What types of discrimination do you see most?
A. Probably gender discrimination against females. A close second is age discrimination. Some of that would have to do with the age demographics of this area.
Q. Are you talking about women who are not being promoted? Who are getting paid less than men? Who are being sexually harassed?
A. The more common type is women who aren't given the same consideration for upper-management positions, so that's advancement issues as well as compensation issues.
Q. How do you prove gender discrimination?
A. A lot of times you see cultural protocols within the corporation that clearly discourage the advancement of women. You may see an organization where job positions aren't posted but are filled by word of mouth.
Q. Are all employers required to publicly post job openings?
A. No, they are not.
Q. What does it mean when a business says it is an "equal opportunity employer"?
A. There's no certification that allows you to say that. It's a way for an organization to articulate to the public that they welcome a diverse candidacy. But it's an oft-used and sometimes insincere phrase.
Q. Is gender discrimination more common at blue-collar workplaces or white-collar ones?
A. We often see gender discrimination in historically male industries, like construction. Law firms used to be that way, too.
Q. If you can show that a construction company has 36 regional managers and only one is female, does that make it easier to prove discrimination against a particular female employee?
A. Very much so. There are three things I often look at organizationally. One would be their protocols for hiring and promotion and compensation. The second thing is if you see statistically that women in similar positions make less money than men, or are relegated to lower-paying jobs. Third, I look for anecdotal evidence, remarks that suggest a diminished value of women.
Q. What are the big trends today in discrimination law?
A. Overtime cases under the Fair Labor Standards Act. I'm also seeing a tremendous amount of whistle-blower litigation. . . . The federal government just does not have the regulatory budget it used to. Whistle-blowers are like private attorneys general: If they can prosecute these cases, they're able to make a correction within the ethical culture.
Q. What percentage of your clients who file suit against an employer end up staying with the company?
A. It's one of the more clumsy situations, an active employee suing the company they're working for. . . In almost all circumstances, the ultimate goal is to merely recover for the losses they've incurred, then go on and form a new employment relationship with a new employer.
Q. Earlier in your career, you worked for the Haynsworth Baldwin Johnson law firm in Tampa, defending businesses against precisely the types of claims you're fighting them on now. When you left Haynsworth, did you think to yourself, "Gee, I can go make good money exploiting what I learned on the other side?"
A. In 1991, Congress changed the civil rights laws dramatically to allow for jury trials and compensatory and punitive damages. I was approached by a firm that wanted to start an employment practice and decided it would be interesting to do that. I really enjoy this side of the aisle. A client knit an afghan for my wife and three small afghans for my daughters. We get cookies here, Christmas cards, flowers.
Q. You didn't get afghans from, you know . . .
A. IBM? No.
Q. What are the most common mistakes employers make that lead to discrimination claims?
A. If you want your employee (to come) after you, treat him like a thief the day you fire him. . . . March into his office with a box, monitor him while he packs his personal belongings, tell him he can't talk to anybody or say goodbye. . . . Oftentimes, it's not the fact of termination but the way the termination is handled.
Q. Who tends to be the bad guy or woman in discrimination cases: the HR person, a middle manager, the CEO?
A. The victimizer is usually the immediate supervisor. Often, large corporations have very sophisticated human resource protocols that are intended to ensure equal treatment. But individual biases, the individual egos that are at play, bore right through those.
Q. Are some types of complaints more likely than others to be settled before going to court?
A. Yes, those that are embarrassing by way of their allegations: sexual harassment, whistle-blower claims. It's not that embarrassing to be called an age discriminator. It is embarrassing to suggest that you did inappropriate things with your secretary, or that you were defrauding the federal government.
Q. Roughly speaking, what percentage of people who hire you ultimately settle with their employer prior to filing suit?
A. I think about half of all cases settle before filing suit. The most difficult, yet most important, thing I do in an initial consultation with someone is to tell him, "That was really unfair, that's really lousy, but there's nothing unlawful about it." There's a lot of really coarse, rude and unfair conduct that's not illegal.
Q. In your experience, what proportion of discriminatory behavior is deliberate vs. inadvertent?
A. I think probably 10 percent of each of those, and then 80 percent in the middle, where the bias is less blatant but still there.
Q. Could you give an example of the 80 percent?
A. An executive says to himself, "Well, I've got to promote one of these two people. Now, I always did like Scott. Scott looks a lot like me, he's white, he's got a very similar background and experience. I like him, I have lunch with him."
Q. Say an employee is feeling harassed, and he figures no one will believe him unless he makes a secret audio or video tape of the boss in action. Is such evidence admissible in court?
A. Federal law prohibits you from taping someone on the telephone without their permission. I don't like the tape-recording thing generally, even if it's offered outside of those media, because I think it looks too sneaky. I think it affects the employee's credibility before the jury. What I often tell people to do is keep a personal journal. . . . Then when I'm questioning my client before the jury and say, "Why are you so confident that (your boss) made those remarks about your age," you can say, "Well, Mr. Linesch, I was in the habit of actually writing a journal at that point in time." Then I ask you to read that entry to the jury. See how compelling that is?
Q. If someone comes to you and says, "I think such-and-such company isn't hiring older people, I saw no one there under age 30," will you take a case like that?
A. I had a company one time that we suspected was not hiring African-Americans. And so we sent a bunch of clean-cut African-Americans with really good credentials down to apply for jobs. Not one of them got a job. And then we sent some white people down there, and they all got jobs.
Q. Who exposed the company in that case?
A. A human resources vice president they had terminated. . . . She had actually gotten into an argument with several of the store managers who kept telling her, "Don't send us any more blacks."
- Times editorial assistant Barbara Moch helped prepare this transcript. Scott Barancik can be reached at barancik@sptimes.com or 727 893-8751.
David Linesch
Age: 46
Birthplace: Dayton, Ohio
Education: Ohio State University, B.A., J.D.
Company: the Linesch Firm PA, Palm Harbor
Web site: www.lineschfirm.com Practice: Represents workers in employment disputes
Prior firms: Haynsworth Baldwin Johnson & Harper, Tampa (now Haynsworth Baldwin Johnson & Greaves); Carey and Florin, Clearwater (now Florin Roebig Walker of Palm Harbor)
Other appointments: certified mediator; adjunct professor, Stetson University College of Law
