Qusair Mohamedbhai’s law firm Rathod Mohamedbhai has been in the spotlight for civil rights cases and is also one of the largest firms in Colorado that handles plaintiff’s side employment cases. With work environments completely changed in 2020, so too have employment cases.
LAW WEEK: What do you see as the most significant issues of the past year?
MOHAMEDBHAI: Setting aside the COVID-related issues, I get the sense that maybe unemployment and underemployment are much higher than we’re being told. And for folks who are employed and are working from home, we’re discovering the traditional discrimination categories — sexual harassment racial discrimination, age discrimination, disability-based discrimination, and retaliation and harassment — those types of claims in the home-working environment have plummeted. I’ve never seen this little action in discrimination or Title VII or the Colorado Anti-Discrimination Act cases.
Particularly, if we just talk about sexual harassment which takes a lot of forms and there are a lot of motivations for why it occurs. Generally, with sexual harassment it involves some kind of face-to-face interaction, and that’s just not happening. People are not interacting face to face or at work events, happy hours, trips, those types of things, and there is just very little actionable sexual harassment and discrimination that we’re seeing. So, we, as a plaintiff’s firm, are finding actionable cases to be much less, resulting in far fewer charges being filed at the EEOC or the CCRD, which will certainly result in less lawsuits being filed.
I believe that many employment firms are still working on cases that were pre-pandemic, and so while there are a lot of questions surrounding COVID and issues related to working from home, there’s just been very few of those types of things. And it’s not that sexual harassment has disappeared, it’s just part of the nature of how people are separated and it’s not being reported as much.
And it’s a yin and yang relationship for the legal industry. If plaintiff’s side firms like ours are unable to bring actionable claims, then the defense side isn’t doing litigation either. It’s good for the community that it seems to be happening less, but certainly for law firms who specialize in these types of practice areas, it’s not good, and law firms are going to have to look into other practices.
LAW WEEK: What issues have taken up most of your attention lately? Is there any pressing area that you’ve been working on?
MOHAMEDBHAI: We’re looking at wage-and-hour issues a little more. There are still compensation-related claims, but here’s another phenomenon to go back to the gloom and doom to your question. We have found that when there’s a recession — so this occurred in ’08 and ’09 as well — when there are legitimate layoffs that are occurring in the industry, a lot of times there may be discrimination in the selection of some of the employees who are laid off, and those are very hard to prove. We’re pretty good at proving discrimination — it’s our job to do that, and we’re pretty good at it — but when you are laying off larger groups of people and then you slide in people who may not exactly fit into what it should be but sort of do, that becomes very difficult. And the law is not favorable to sniffing out individual discrimination in a layoff setting. It’s hard, and courts are somewhat sympathetic, they don’t like second-guessing business decisions.
Another factor for that is also underemployment. A lot of people feel very grateful to have a job. You hear that a lot right now. “How are you doing?” “Oh, I’m blessed. I’m better than most.” Well that translates over to employment law, because people are not quite as brave to complain about discrimination. They just don’t want to rock the apple cart and people tolerate a lot when they feel they need to. So, even if people are being harassed or being treated unfairly based upon some kind of protected characteristic, or category, they’re just not complaining. So, we have that as well.
LAW WEEK: What has the impact of this slowdown been on your firm? What does your virtual office look like these days?
MOHAMEDBHAI: Litigation-based firms, generally, their business is litigation. So, when you’re not filing, there’s no litigation, and when there’s no litigation lawyers are less busy.
We do school cases as well, and there has been a pretty big uptick in kids who have special educational needs or require additional attention. We have seen schools and districts really struggle with transferring an IEP, which is generally intensive one-on-one or small-group types of situations. Translating that has been difficult. So, we have seen a gap for education and special needs education. That has been very challenging.
But when you’re in the business also, unfortunately, as we are, we also do a lot of work related to children who have been abused by their educators, or those that are in a position of trust in school settings. It happens frequently. It’s bullying, it’s racial harassment and religious harassment and, unfortunately, sexual harassment as well. And it’s the same issue with employment, when kids are not in school, then they’re also not being abused by results. And that’s a good thing. We have seen much, much less of that. So those types of litigations, I believe, are not going to be happening. They just won’t come in 2020.
LAW WEEK: What is your outlook for 2021? Are there any issues that you’re expecting to change from here or things that you’ve been seeing that will continue to carry over?
MOHAMEDBHAI: I think everyone is reading tea leaves and Magic 8 Balls for the future, but if I had to guess, based on what I’m seeing in our own firm and hearing from clients, I think 2021 post-vaccine will probably be a Summer of Love and a summer of expense accounts.
For the companies that made it through, I think we’ll see people missing each other and wanting to catch up for lost time, and I think that provides a hopeful future for firms that practice discrimination-type work, because you’ll have a lot of people returning to the workplace in a somewhat festive, celebratory mood and that sometimes can translate to shenanigans and hanky panky. So, there might be an increase in the short-term when people sort of rush back to work. There might be a short period as well where people are coming back to work and all the processes and supervisors and management schemes may not be fully in place so you may have somewhat reckless behavior or some employers are not prepared for the return to place.
And you certainly expect to see some permanent changes related to physical offices. As some employers will certainly see, and have reported, that they were surprisingly productive in this remote environment, and I think some of these buzzwords like hybrids may state for some companies. I predict that individual offices may start becoming less and less and will see offices seen as kind of workstations or communal workspaces. So, I do see employers downsizing their footprints, because they can, and employees will rotate and schedule and use workspaces a little bit different.
And it has implications. It’s harder as an employee to thrive in that kind of environment. And younger, less-experienced employees who require more training, those things might be a little harder as well. Companies are going to be changing in that regard.