Howard Miller, BridgeTower Media Newswires
Recently, while in a Brazilian Jiu-jitsu class with a competitor twice my size and half my age, astride my chest trying to choke me, it occurred to me that the crushing weight and loss of oxygen is how many of my HR clients must sometimes feel in the ordinary course of their work.
Considering life lessons learned from many years of martial arts training, I realized that I incorporate many of the philosophies that underlie martial arts into my employment law practice.
For example, Bruce Lee, who was, in fact, a philosophy major, opined, “In the middle of chaos comes opportunity.”
As for chaos, the New York State Legislature recently passed numerous laws converting the employment laws into a bastion of frontier justice. The severe and pervasive standard for a hostile work environment under the New York Human Rights Law was eradicated in favor of the more liberal New York City Human Rights Law standard; the Faragher defense, formerly available under the state law, was eliminated, and a bill that allows an employee to place a lien on an employer’s property upon the mere allegation of being underpaid awaits signatures.
Reflecting on Mr. Lee, it becomes readily apparent that we’ve all survived legal pendulum swings and alarms about the sky falling in. The abolition of the “severe and pervasive standard” in favor of New York City’s standard of something more than “petty slights” and “trivial inconveniences” does not mean strict liability. Courts have determined that the law is not a “civility code” and workplaces need not be sterile and devoid of humor.
The opportunity is to shift focus away from legal tightropes and towards collaboration, team building, and supervisory coaching. Few harassment complaints come out of a workplace where everyone feels heard and respected. Employees can accept that mere supervision is not harassment, and that expectations should be met.
Any new chaos begs a return to old fundamentals with a modern twist. Documenting files digitally is easy and expedient. Supervisor training can be pragmatic, yet entertaining, using multi-media.
Another example of martial arts philosophy comes from Brazilian Jiu-jitsu, which is the ultimate strategy game. BJJ is somewhat like chess but with your arms and legs, not your pawns, being trapped or doing the trapping. BJJ legend Saulo Ribeiro observed:
“Jiu-jitsu is the gentle art… where a small man (or woman) is going to prove…, no matter how strong you are, no matter how mad you get, that you’re going to have to accept defeat.”
Every HR Director should adopt this philosophy when dealing with an unreasonable employee: No matter how hard you try to game the system, threaten me to obtain something you haven’t earned, or excuse inexcusable behavior, you will lose. Basically, adopt a view that you have seen it all before. You can be compassionate without being conned. You can be patient without unduly capitulating. The key is to act a calmly, confidently, and without anger.
The Israeli hand-to-hand combat system Krav Maga is also replete with philosophy. This art is known for its overwhelming, violent counter-attacks. It is not a sport – but survival at its most primitive. Krav Maga founder Imi Lichtenfeld has been quoted as saying: “Krav Maga, so that one may walk in peace.”
Applicable here, HR executives must be confident in their training, know how to avoid unnecessary and counterproductive confrontations, but be able to deploy all manner of overwhelming weaponry when subjected to unprovoked attacks (lawsuits). Picture an employee who was fired for theft, fraud, or other serious misconduct, and nonetheless sues. If reason fails, employ available counterstrikes. Counterclaim under the faithless servant doctrine. Seek employer-side fee shifting under 28 U.S.C. § 1927. If misrepresentations are made by opposing counsel on state law claims, seek to treble the attorneys’ fees under Section 487 of the Judiciary Law.
Often, an adversary will back off when threatened with these remedies.
This bottom line is that you don’t need to wear a gi or break boards to become an HR ninja, but utilizing the philosophies of the combat arts could lead to never having to engage in litigation combat over workplace disputes. At a minimum, a confident and calm approach to solving human resources quagmires is not only the most effective, but also good for the psyche.
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Attorney Howard Miller is a member at Bond, Schoeneck & King in Garden City.
