Obama/Biden v. McCain/Palin. Campaign over. Outcome decided. Now it's time for the after-action reports, political and otherwise. So, are there any employment-law lessons for execs to learn? As one of the candidates might say, "You betcha."
No. 1: Sarah Palin-blaming illuminates the fundamental attribution bias: This cognitive bias shows that when something goes wrong, people search for the one and only reason why. Our minds want to organize what is basically a disorganized world. As novelist Tom Clancy says, the difference between fiction and real life is that fiction must make sense. I listened to radio talk shows in the election's aftermath. They all seemed to want to blame Palin, the governor of Alaska who was the Republican vice presidential nominee, for the loss. That's the fundamental attribution bias in action.
The same dynamic occurs in employment law. Something goes wrong at work, so someone must be responsible and thus disciplined. Find that employee, and all will be well. No, it won't. Most problems are caused by systemic issues — not individual ones — in politics and at work.
No. 2: Trust the good data: The 1948 Thomas E. Dewey v. Harry S. Truman election outcome has a nice story and a solid narrative, but it won't ever happen again. Modern polls, when done right, are dead-on accurate. The Pew and Rasmussen polls nailed the final result for Obama/McCain. Nate Silver of FiveThirtyEight.com did, too. But listening to the conservative talk shows and commentators right before the election, you'd think they were living in an alternate universe, and the 2008 election would be a repeat of 1948. Or, the Bradley effect would be triggered. Or, Joe the Plumber would be Obama's undoing. All wishful thinking, inconsistent with the hard data from the polls. As John Adams said in his closing argument on behalf of British soldiers accused of murder, "Facts are stubborn things." While inconvenient, they are still real and can't be wished away.
The same is true in employment law. Jury consultants I have worked with over the years use focus groups. When well picked and given all the facts, they are predictive. The biggest mistake made by employers? They drink the Kool-Aid of their own story, slant the facts to the focus groups and get a "false positive" result. Don't be deluded; believe the data.
No. 3: Use your own story, don't hijack the other side's: A few days after Republican presidential nominee John McCain named Palin as the VP choice, I knew that was a persuasion mistake. Why? Democratic presidential nominee Barack Obama's narrative was change. Trying to hop on the "change" wagon with Palin's selection only reconfirmed Obama's narrative, it did not enhance McCain's.
It's the same with employment law trials. In their opening statements, employers make the mistake of only rebutting the opening given by the plaintiffs. The result is the jury hears a plaintiff's version twice and garbed in the plaintiff's frame, at that. Create an alternate universe.
No. 4: It's not about you, it's about them: McCain's campaign stressed repeatedly that his military record made him fit to be president. Doing so was a mistake. It made the campaign of persuasion about him, not about them — the voters. Obama always made it about them, not about him. Am I saying that personal stories have no place in a campaign? Not at all. But, the personal narrative must be something with which people can identify. Most voters never have been to war. Many were not yet born or were children when the Vietnam War raged on. While certainly honorable and worthy of respect, it is simply not effective persuasion. Many more voters were raised in poorer families, struggled to do well and overcame obstacles along the way. That's an archetype, a universal story, with which everyone can, at some level, identify. It certainly was Obama's narrative, an offshoot of which helped elect President George W. Bush. Bush' narrative was redemption: I led a wasteful life. I drank. I was reckless. But, I overcame it. Another archetype.
Same with an employment trial. Back in the mid-1980s, I tried an age-discrimination case. The employer's narrative: "We lost a lot of money last year, times are tough and we needed to maintain profitability." All true. But the jury could have cared less. Their lives and my narrative had zero overlap. Can you change the facts? No, but you can change the story. A better narrative: "We needed to conduct a reduction-in-force, but it was done fairly, with the sole goal of maintaining the best employees."
No. 5: Pick a narrative and stick with it: Don't pile on. Let me tell you what this point is not about: fine-tuning. Obama's message morphed from "change we can believe in" to "change we need." Sharpening the message is smart persuasion. Constant changing is not, nor is sending several different messages at once. Look at McCain's campaign: Obama plays around with terrorists; or he was a Socialist; or don't trust him, he is just a celebrity à la Paris Hilton. Too many messages. People want clarity, not confusion.
Employers who go with clarity stand a better chance of coming out on top. I was working on an appeal of a case where the employer, at trial, opened with, "We fired the plaintiff because he was a poor performer," but the employer ended it with, "Not only was he a poor performer but he may have stolen from the company as well." That is too big a shift.
Also, beware how you respond to the Equal Employment Opportunity Commission when it asks for an explanation for why an employer did what it did. Get the facts and give the real reason(s). Piling-on feels good — by gosh, we are socking it to the employee. We irrationally fear waiving an argument. But the art of politics, as well as of employment law, is not always what to put in but what to leave out.
No. 6: Avoid square pegs and round holes: The McCain campaign insisted (despite being given opportunities to retreat) that Alaska's geographic proximity to Russia gave foreign policy bona fides to Palin. Rather than acknowledging the "we can see Russia from Alaska" notion as a product of overexuberance when McCain announced her selection, the campaign dug in its heels, as did Palin in her interview on the "CBS Evening News With Katie Couric." The square of geographic proximity did not fit into the round hole of foreign policy experience.
Square pegs and round holes thrive in labor and employment law. Once, while getting a manager ready for his deposition, he refused to say that employees were "terminated" in a reduction-in-force. Instead, he insisted they were "downsized." (At least he didn't say right-sized or made redundant.) Trying to fit the euphemistic peg of "downsized" into the harsh hole of unemployment only makes jurors angry.
All these factors contributed to an Obama win. Yet, they were each animated by how his campaign handled hiccups, of which it had its share: the Rev. Jeremiah Wright imbroglio or during a debate snidely telling U.S. Sen. Hillary Clinton, also a Democratic candidate for president, "You're likeable enough Hillary." But, for each hiccup, Obama either learned from it (no more cheap shots at Hillary), or made it work for him (his widely-praised speech in Philadelphia on race relations).
Charles Darwin never said it was the survival of the fittest. Instead, it is the survival of the most adaptable. It is exactly like Marcus Aurelius wrote in his discourses: "By welcoming the obstacle and by calmly adapting your action to it, you will be able to do something else in harmony with your goals." In politics, as with work matters, it is all how you look at it.
• Execs can learn lessons from the presidential campaign.
• Looking for one person to blame for a problem and disbelieving reliable data are human tendencies execs must fight.
• Tell the company's story, not the other side's story. Sticking with a good narrative increases the chances of victory in an employment dispute.
• Do not stick bull-headedly with an ill-advised course of action. Avoid trying to fit a square peg into a round hole.
Michael P. Maslanka is the managing partner of Ford & Harrison in Dallas. His e-mail address is email@example.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization, and he writes the Texas Employment Law Letter. His "Work Matters" blog and podcasts can be found at www.texaslawyer.com.