The courts have also made clear that if employers do their bidding in this regard and take these kinds of proactive steps, the courts will respond in kind by requiring that employees make use of the employer's procedures to address concerns in the workplace first — before they come crying to the judiciary. The Supreme Court has made clear that an employee's failure to make use of an employer's effective complaint mechanism "will normally suffice to satisfy the employer's burden," allowing the employer to successfully assert an affirmative defense to a harassment claim. Faragher, 524 U.S. at 778.

Thus, a sexually harassed employee who has failed to communicate her concerns to a responsible employer who has established appropriate complaint mechanisms and a supportive and enlightened workplace culture is likely to face dismissal of a sexual harassment claim following the employer's motion for summary judgment.

The Supreme Court also has recently made clear that companies that take the kinds of steps described above to educate and train the workforce on matters of discrimination generally — including racial, religious and gender discrimination — may successfully ward off claims for punitive damages even when an errant manager has engaged in discriminatory conduct that is egregious.

In Kolstad v. American Dental Ass'n, 527 U.S. 526, 534, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), the Supreme Court ruled that an employer that makes "good faith" efforts to comply with the employment discrimination statutes may be able to preclude punitive damages from being considered by a jury in an employment discrimination case even when acts of discrimination have occurred. The court stated that:

in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's "good-faith efforts to comply with Title VII." . . . "[G]iving punitive damages protection to employers who make good-faith efforts to prevent discrimination in the workplace accomplishes" Title VII's objective of "motivat[ing] employers to detect and deter Title VII violations." Kolstad, 527 U.S. at 545-46 (second brackets in original; citations omitted).

The Supreme Court explained that its ruling was designed to ensure that the "incentive for employers to implement antidiscrimination programs" and to "educate their personnel on Title VII's prohibitions," is effectively maintained. The hope, of course, is that many of these issues will be resolved in the first instance through direct communication between the employer and the employee themselves — before the blunt (and inefficient) instrument of litigation is wielded to resolve what may, in many cases, be no more than personality conflicts.

In the area of accommodating disabilities, the courts have issued an even more pointed directive, instructing employers and employees that they must engage in direct communication with each other about the effect of an employee's disability and the possible accommodations that may be available. Interpreting the Americans with Disabilities Act's (the ADA) broad mandate that employers "reasonably accommodate" employees' disabilities, the federal courts in recent years have recognized an affirmative requirement that an employer and employee engage in an "interactive process" when it becomes clear that an employee's disability is interfering with his or her employee's ability to perform essential job functions.

Most of the federal circuits have held that an employer has a mandatory obligation to engage in this process that is triggered either by the employee's request for accommodation or by the employer's recognition of the potential need for accommodation. Yet many employers, perhaps cowed by the well- publicized and strict rules prohibiting pre-employment inquiries into disabilities (that is, during job interviews, etc.), or simply muted by a misplaced sense of personal decorum, are reticent to talk about an employee's disability at all.

When it comes to dealing with an employee whose disability may be affecting his or her job, however, this bury-the-head- in-the-sand approach is likely to be disastrous as it runs directly counter to the courts' mandate to engage in the interactive process.

In the process as envisioned by the courts, the employers must directly address often quite-sensitive matters regarding the nature, extent and severity of an employee's disability, and may even need to communicate with a medical provider that has treated the employee. While courts have recognized the "someone with a disability may be reluctant to discuss [their condition] with anyone, particularly his/her employer," as long as the employer creates circumstances that are "conducive to candid and sensitive discussion" about the disability, the employee must provide the relevant information to the employer in the interactive process or lose any right to an accommodation under the ADA. Conneen v. MBNA America Bank, NA, 3345 F.3d 318 (3rd Cir. 2003).

As the Ninth Circuit Court of Appeals explained in Barnett v. U.S. Air Inc.:

The interactive process requires communication and good- faith exploration of possible accommodations between employers and individual employees. The shared goal is to identify an accommodation that allows the employee to perform the job effectively. Both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. Barnett v. U.S. Air Inc., 228 F.3d 1105, 1114-15 (9th Cir. 2000) (footnote omitted), rev'd on other grounds 535 U.S. 391 (2002).

The courts have made clear that they stand ready to use the club of bad litigation results to strike blows against the party — either employer or employee — who bears responsibility for a breakdown in the interactive process. As the Seventh Circuit has stated, "courts should attempt to isolate the cause of [any] breakdown [in the interactive process] and then assign responsibility" so that "[l]iability for failure to provide reasonable accommodations ensues only where the employer bears responsibility, for the breakdown." Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135, 1137 (7th Cir. 1996).

Employers faced with a failure-to-accommodate claim will find themselves hard pressed to have a lawsuit dismissed on summary judgment if the record does not unambiguously demonstrate that the employer made a genuine and sustained effort to engage in the interactive process.

This expectation of direct communication and "interactive process" has found its way into the law that has developed under the Family Medical Leave Act (FMLA) as well. As the Fourth Circuit recently stated, "[b]ecause the FMLA was ‘designed to balance the demands of the workplace with the needs of families,' employers and employees are encouraged to communicate with each other in an interactive process that helps each party fulfill its needs." And, as another federal court has noted, "the FMLA presupposes that employers and employees cooperate and exchange information ‘through informal means.'" Peebles v. Coastal Office Products Inc., 203 F. Supp. 432, 447 (D. Ma. 2002) (citing 29 C.F.R. § 825.303(b)).

Those employers that are too bashful or polite to ask an employee the reasons for their absences from work may find themselves unable to designate the time off as subject to the FMLA, thus impeding their ability to manage and limit the amount of time off an employee may take. Under the FMLA, employers have "the right and [in some cases] the responsibility" to make inquiries — including requests for medical certification — to determine if an absence qualifies for protection under the FMLA. Bailey v. Southwest Gas Co., 275 F.3d 1181 (9th Cir. 2002).

But of course, not all communication between employer and employee is helpful. The courts have made clear that to be effective, the communication must not only be direct, it must — just as in other areas of life — be honest as well.

In Reeves v. Sanderson Plumbing Products Inc., a case that has greater significance than most employers may appreciate, the Supreme Court considered the question of what kind of evidence is sufficient to allow a plaintiff to get its case before a jury when the employee alleges that the employer took some action against the employee with an unlawful discriminatory motive. 530 U.S. 133, 137, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

The court ruled that a plaintiff may have enough evidence to get to trial — and to win — even when the plaintiff's only evidence of discrimination is that the employer made untrue, or even merely inconsistent, statements about its reason for the challenged decision. The court explained that in some circumstances a judge or jury,

can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Id. at 147 (citations omitted).

Subsequent decisions have made clear that any evidence that the employer has not been entirely truthful or completely consistent in its statements about what was probably an anguished personnel decision is likely to be enough to keep a case from being dismissed on a motion for summary judgment.

The Reeves decision underscores the importance of truth-telling in situations in which being honest is often particularly difficult, such as evaluating an employee's inadequate job performance, or telling a disappointed employee the reasons that someone else was selected for a promotion. A "white lie" designed to spare a bruised ego at the time of an adverse decision may later provide the key evidence that keeps a case from being dismissed.

For example, an employer that presents what is actually a performance-based termination as a "layoff" in a good-hearted attempt to ease the stigma for the employee, may find its good intentions to be its undoing.

In all of these areas of complicated human interactions, the courts are changing the emphasis in employment discrimination cases from a simple "thou shalt not discriminate" to a more nuanced approach that focuses on effective workplace processes and communications that are aimed at achieving a fair result — whether relating to a discharge decision, a request for accommodation or leave of absence, or a response to a complaint of sexual harassment.

In view of this new premium on communication and honesty, the old nursery rhyme, "tell the truth and treat people fairly" has renewed significance for employers — while it may or may not lead to employees "doing the same for their employer," it should at least lead to improved litigation results.

Tips for effective workplace communication

• Cultivate personal skills. Train you managers and HR staff to be direct, honest and above-board. Hire and advance people who have these traits.
• Don't beat around the bush. If an employee appears to be having performance problems because of a physical or mental disability, initiate a conversation to determine if the employee may need an accommodation.
• Toot your own horn. As you work to determine what accommodations may be suitable, communicate with the employee about what you are doing.
• Don't be too bashful or polite. If an employee is out sick, inquire about the reasons for the absence. And if you have reason to believe the absence might qualify for FMLA coverage, provide the employee with the appropriate paperwork, including the Department of Labor's medical certification form (Form WH-380), to determine if the leave qualifies as FMLA leave.
• Educate your managers about their obligations under the ADA and the FMLA so they know when and what to ask an employee who has a physical or mental impairment and when, whether and how to communicate with medical providers.
• Be honest. Don't try to spare feelings or hide the ball by pretending a termination or other adverse decision is the result of something other than the real reasons.
• Don't be two-faced. If you're dealing directly and honestly with an employee, your communications (including e- mails) to other managers or HR staff should be consistent with what you're saying directly to the employee.
• Having a harassment policy is not enough. Make sure it is available and accessible to employees. Be sure it clearly provides for multiple avenues for complaints (for example, don't specify that complaints should be received only by the employee's direct supervisor). And make sure your policy — and your practices — prohibit any retaliation.
• Establish a procedure that employees can use to air their concerns about any workplace problems. Distribute the procedure and encourage employees to use it.
• Be open to respectful disagreement. Work to establish a culture that welcomes respectful dissent.
• Document your communications with employees because you may have to prove that they occurred.