Although I don't know him personally, during the past ten years I have grown rather fond of Brian Williams, the much beloved anchor of NBC's nightly news. After all, he is the epitome of a true New Jerseyan. He is smart, funny, relatable, a bit edgy (remember his anger over the administration's inaction in the aftermath of Katrina?), a straight talker and tell-it-like-it-is sort of guy. Up until last week, millions of us have come to view him as stand-up, likeable, and credible. But as quickly as snow turned to freezing rain this winter here in the Garden State, the previously generally accepted perception of Brian Williams changed when it was discovered that he misrepresented (okay . . . okay . . . he lied but I told you that I have a fondness for the guy) the facts of a helicopter attack in the U.S. Invasion of Iraq. From what I understand, which is probably all stuff you know already, while reporting in Iraq in 2003, a helicopter was downed after being hit by a rocket-propelled grenade (RPG). About a half hour later, Brian Williams showed up on the scene in another helicopter, interviewed the brave service members on the downed helicopter and surveyed the damage. For some as-of-yet-undisclosed reason, Williams then re-told the story, first, as if the RPG had been fired at but missed the helicopter on which he was a passenger and, later, as if he had been a passenger on the downed helicopter. While initial criticisms about his claims appear to have been ignored or forgotten (honestly, I have no recollection of that), they resurfaced in early February. Now, additional comments that he has made in the course of reporting, such as that he saw a dead body floating down Canal Street in the French Quarter and that he came down with dysentery after ingesting flood water during Katrina, are being investigated because there was little flooding in the French Quarter and there were no documented cases of dysentery in New Orleans during that time. Williams subsequently apologized for, what George W. Bush once referred to as, misremembering. Since then, Williams benched himself after acknowledging that his "actions" caused him to become part of the news instead of simply reporting it. Like the Terminator, though, it appears that he'll be back as he concluded his only public statement on this scandal when he promised that "upon my return, I will continue my career-long effort to be worthy of the trust of those who place their trust in us." For its part, NBC has largely remained silent on this matter other than to issue a statement making clear that it is "gathering facts" to "make sense" of what happened and "working on what the best next steps are." Incidentally, the fact checking inquiry is being handled internally.
So, while this is all fascinating, you may be asking yourself what it has to do with employment law - a legitimate question that I am sure many other New Jersey employment lawyers are asking themselves. Look, honestly, the question is maybe nothing but maybe everything. Not straightforward enough for you? Okay, well . . . people lie. More often than not, clients come into our office and swear up, down, and sideways that their co-workers (or sometimes supervisors) will support their claims of discrimination, harassment or retaliation. It's hard not to be cynical at times like those after sitting on this side of the desk for so long because people lie - a fact we have sadly seen at play time and time again. They lie for lots of reasons but people lie. Sometimes it is self-preservation - they don't want to get themselves in hot water or, worse, fired for telling the truth. Sometimes it is because they want to self-aggrandize (make themselves look better), sometimes people just don't want to be involved and yet other people simply can't help but lie. So when clients or potential clients say that they just know that so-and-so will tell the truth, we patiently hear them out and explain that you cannot necessarily count on people in these situations.
So how do you prove discrimination, harassment or retaliation if people aren't going to back you up? Well, there are a lot of ways to do that. You can prove your claim through circumstantial evidence, which means that you tell your story in a truthful way and that story leads to the logical conclusion that you were discriminated against, harassed or retaliated against. While people will often refer to this as a "he said/she said" situation, more often than not, there are additional facts that make clear that it is something beyond that. Let me give you an example. Suppose that when you fall asleep one evening in January there is no snow on the ground and it is not snowing when you lay your head on your soft, comfy pillow. When you wake up the next morning, it is not snowing but the ground is covered with snow. Logically, although you did not see it snow, you know that it snowed while you were asleep because that's the only thing that makes any sense. Proving employment claims is done much the same way so that while direct evidence of discrimination, harassment or retaliation (like an eyewitness who will corroborate your story) is great, it is not necessary. What do I mean by that? Well, let's consider this example: Sam works for a company for 5 years and always received great reviews and was the top contender for a really big promotion. Three months ago, he told his employer that he would need FMLA leave to start treatment for a serious health condition. Two months ago, he was told that he was no longer being considered for the promotion but not told why. One month ago, he got a really lousy review even though he outperformed his co-workers last year. This week, he was fired. Doesn't that look a lot like discrimination for needing and requesting leave? We think so, too. But this is just one example and there are many many different ways to prove discrimination, harassment, and retaliation.
So getting back to Brian Williams. What's this got to do with him? Well, you can't count on people to tell the truth even if they directly witnessed the unlawful conduct that you were subjected to and are your workplace BFFs. Also, and here's the silver lining in this thing, the truth often eventually comes out. One way or another it comes out. Whether it is because the circumstantial evidence is so strong that the only thing that makes sense is that there was a bad motive at play, or because it is hard to perpetuate a lie forever so that the liar eventually slips up, or because someone else finally gets fed up and comes forward with evidence of the lie, the truth eventually comes out.
So, if you believe that you are being discriminated against, retaliated against or harassed at work but are not sure how you can prove it, come talk to the experienced New Jersey employment attorneys at Lenzo & Reis, LLC.