Employment Law Through the Philosophy of a Martial Arts Practitioner
July 12, 2019
By: Howard M. Miller
The other night I found myself in a Brazilian Jiu-jitsu class with a 250-pound musclebound gentleman sitting on my chest trying to do rather unkind things to my neck and vulnerable joints. While this was certainly not the most opportune time to be thinking about how to parlay this situation into a blog article, it did occur to me that the crushing weight on my chest and the attendant loss of oxygen therefrom, is how many of my clients must feel in the day-to-day trenches of the modern-day digital world of human resources.
The situation also gave me pause (again, not at the best time) to think about what life lessons I have learned from many years of training in different styles of martial arts (other than how to tape deformed fingers and that a bag of frozen peas works wonders on bruised ribs). Upon further reflection, I realized that I do in fact incorporate many of the philosophies that underlie martial arts into my employment law practice. I share those pearls of wisdom below.
Any discussion of martial arts philosophy simply has to start with a quote from Bruce Lee, who was in fact a philosophy major. While the Internet is replete with his sage musings, I think the most apt when it comes to Human Resources, is: “In the middle of chaos comes opportunity.” Now I have to confess that oftentimes it feels that the only thing that comes from being in the middle of chaos is more chaos and accompanying agita. But that really does not have to be so.
In this regard, there is no better time to practice responding to chaos than right now. As discussed in a recent blog article, the New York State Legislature has recently seen fit to pass a series of laws converting the employment laws into a bastion of frontier justice. Among other new laws, the severe and pervasive standard for a hostile work environment under the New York Human Rights Law has been eradicated in favor of the more liberal New York City Human Rights Law standard, the Faragher defense that had been available under the state law has been eliminated, and there is even a bill waiting for signatures that allows an employee to place a lien on an employer’s property upon the mere allegation of being underpaid.
This all begs the question: what possible opportunity could there be in the middle of this particular chaos? My initial knee-jerk reaction was that it presents the opportunity to pack our bags and move to the Carolinas. But let’s turn back to Mr. Lee for a second. If we take a deep breath, it becomes readily apparent that we have all survived legal pendulum swings, and alarms about the sky falling have invariably proved false. Take, for example, 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.” This actually does not mean strict liability. Courts have adjusted to this standard and made clear that the law is not a “civility code” and workplaces do not need to be sterile and devoid of humor.
The opportunity here is to shift focus away from attempting to walk legal tightropes, and focus more on collaboration, team building, and supervisory coaching. From my observations, and as cheesy as it sounds, we don’t see too many harassment complaints coming out of a collaborative workplace where everyone feels heard and respected. I have seen many employers successfully use coaches for supervisors whose gruff styles have previously led to complaints, and those employers now find a more productive and efficient environment. It also pays to make sure that all concerned understand that mere supervision is not harassment, and that expectations need not be delivered via an anvil.
At bottom, the way to deal with new chaos is to return to old fundamentals, but with a modern twist. Documenting files in the digital world is easy and expedient. Supervising the training can be pragmatic, yet entertaining, using multi-media. In other words, we can seize the opportunity to take control over all of this.
Brazilian Jiu-jitsu is the ultimate strategy game -- a moving chess board if you will. But instead of your pawn being trapped, it’s your arms and legs. BJJ legend Saulo Ribeiro observed:
Jiu-jitsu is the gentle art. It’s the art where a small man (or woman) is going to prove to you, no matter how strong you are, no matter how mad you get, that you’re going to have to accept defeat. That’s what Brazilian Jiu-jitsu is.
I think every HR Director should adopt this philosophy. Basically it translates to: when you walk into my office, no matter how hard you try to game the system, threaten me into giving you something you have not earned, or threaten me into excusing inexcusable behavior, you will not faze me and you will lose. The key here is to do this without looking angry or being angry. It’s all about a calm, confident affect. You’ve been there and done that. You’ve seen every trick, out-strategized every set-up, and you are still standing.
Krav Maga is the Israeli hand-to-hand combat system used by its military and known for its overwhelming and violent counter-attacks. It is not a sport -- it is survival at its most primitive. Imi Lichtenfeld, the founder of Krav Maga, has been quoted as saying: “Krav Maga, so that one may walk in peace.”
Applicable here, HR executives need to be confident in their training, know how to avoid unnecessary and counterproductive confrontations, but know how to deploy all manner of overwhelming weaponry when subjected to unprovoked attacks (lawsuits). Take, for example, an employee who was fired for theft, fraud, or other serious misconduct. The employee nonetheless sues. All manner of reasonable efforts to make the employee withdraw the suit fail. Now what?
Know available counterstrikes. For example, counterclaim under the faithless servant doctrine, seek employer side fee shifting under 28 U.S.C. § 1927, and 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 times, an adversary will back off when threatened with these remedies. But if they don’t, Krav Maga.
You don’t need to wear a gi or be able to break boards to become a human resources ninja (though I suppose it couldn’t hurt). But studying the philosophies of the combat arts actually 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.