Sara Gullickson McGrane is an attorney with the firm Felhaber, Larson, Fenlon & Vogt. She previously served as the assistant attorney general for the state of North Dakota.
By Sara Gullickson McGrane
The Minnesota Senate appears to be in for a bit of a wild ride as former employee Michael Brodkorb goes on a fishing expedition to prove discrimination based on his recent firing. If anything, his tactics may produce a net full of Asian carp — a flash in the media pan, but not necessarily a gratifying meal.
To land the big one (Brodkorb is asking for $500,000 in damages), the former legislative staffer must prove individuals at his same level were treated differently by the same decision-maker when they engaged in substantially similar conduct. That is a high legal standard to meet, even if Brodkorb tries to widen his net to individuals on both sides of the aisle.
In addition, Brodkorb's attorney said the expedition will involve deposing women to determine if they had affairs with legislators and yet maintained their jobs. Brodkorb and his team may find it difficult to convince the courts that they should investigate his claims of affairs and dissimilar treatment between male legislators and their female subordinates.
Casting this wide net will likely result in some embarrassing moments for a select group of individuals at the Capitol. It is unclear how much of the information will become public. A protective order may shield some of the information from public view, but if claims are refuted, the information could move into the public domain. The innuendo could prove both damaging and embarrassing.
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So far, the legal proceedings are before the Equal Employment Opportunity Commission. Brodkorb may either keep the proceeding with this federal agency, or he may ask for a "Right to Sue" letter and bring a case in either state court or federal court. It will be interesting to watch the legal maneuverings as he decides which course to chart.
While lawsuits alleging workplace discrimination are not uncommon, this case can serve as a study for employers on ways to navigate the waters.
Here are three things employers can do to protect their interests:
First and foremost, treat similarly situated employees the same. If employees receive the same treatment, they are more likely to feel they are being treated fairly and less likely to sue.
Second, always conduct a thorough investigation of any alleged wrongful behavior. Having a sound investigation shows that the employer took reasonable steps to ensure the decisions reached were accurate.
Third, document, document, document. To defend against a case of discrimination, it is essential to have the documentation.
Brodkorb certainly knows how to make the most out of a media flash in the pan. While carp may be flying left and right, it is important that employers keep this case in perspective. Companies can't control whether they get sued, but they can be prepared in the event it happens by being consistent so fishing expeditions like this don't land the big one.