Laurie Vasichek has been practicing civil litigation in Minnesota for thirty years and, for the past 25 years, has been with the United States Equal Employment Opportunity Commission or “EEOC.” So this means Laurie has deep expertise and experience in a particular area of law but, if it is not your practice area, you might not know of her. This makes Laurie the perfect Minnesota Litigator profile subject.
ML: I want to start the interview with the questions that everyone wants to know: what is your favorite color?
Laurie Vasichek: Blue.
ML: What is your favorite movie?
Laurie Vasichek: The Fugitive.
ML: What is your first pet name?
Laurie Vasichek: I’ve never had a pet.
ML: What’s your social security number?
Laurie Vasichek: [Laughs.] Seriously, I have had to deal with some identity theft recently.
ML: Funny, I just had my credit card number compromised again today, as it happens. So I guess it’s on my mind. But, I don’t know if maybe you wanted to talk about identity theft? It’s not part of your practice or mine. Do you have any thoughts on it on a legal perspective?
Laurie Vasichek: About identity theft? Well I do have I guess a perspective of it as having been a victim. You know how violated you feel when someone starts taking information relating to you and exploiting it? It does somewhat correspond to the victims of discrimination, except on a much more minor level.
When you talk to people who’ve been discriminated against, what you often find is that they have these horrible, horrible feelings of vulnerability. Like their support in their world was just torn away. There’s my parallel to my practice.
ML: Tell us about your practice.
Laurie Vasichek: For the past 25 years I’ve been a trial attorney with the Equal Employment Opportunity Commission or EEOC. We are the federal agency that’s responsible for enforcing the federal laws against employment discrimination.
My position is primarily as a trial attorney, which means we try the cases on behalf of the United States government against employers or unions or employment agencies who the EEOC has found to have violated the law. I also serve as a support for the investigators who investigate the charges.
ML: How many trials do you have a year?
Laurie Vasichek: Not many. I would say 2 would probably be the most I would have in a year.
ML: Some with none?
Laurie Vasichek: There’s been years with none. Those years always make me uncomfortable.
ML: Do you like going to trial?
Laurie Vasichek: I do like going to trial. I hate preparing for trials. There’s absolutely nothing worse than those weeks when you’re trying to put together your exhibit list and your stipulated findings of fact.
ML: Some people think when you’re going up against the United States you’re going against deep pockets and limitless resources…You’re laughing at that. I assume you run pretty lean.
Laurie Vasichek: We do run very lean. You’re not going to ever see a bench from the EEOC as deep as some defense firms on a run-of-the-mill case.
ML: Normally, do you try cases with one other lawyer?
Laurie Vasichek: Yes. If it is one of our large systemic cases, there will be as many EEOC attorneys as are needed to support that case. We will staff the case we need to staff. In your run-of-the-mill case, there will be a primary attorney — the first chair who does the bulk of the work and guides the litigation — and the second chair who assists. There are also supervisors on all cases.
ML: What is a typical day like for you when you work it, today?
Laurie Vasichek: That’s hard to say. Because it does really run the gamut just like any litigator’s. I’ll take depositions; I’ll defend depositions; I’ll write motion; I’ll argue motions.
I think the thing that’s different about the EEOC is how much input we have as individual attorneys. For example if there’s an issue I’m interested in, I will advise the investigator that this is an issue I’m interested in and I’ll advise in their investigations. They would bring questions to me and I’ll give them advice and from there the case may grow into litigation. Then in the litigation, I’m also the one who primarily take charge of taking the depositions or arguing the motions.
ML: Do you have such freedom that you could say, “I think ‘X’ is a current problem and this district, this kind of discrimination, and I want to root it out and have my investigators look into it”?
Laurie Vasichek: Well, they’re not “my investigators.” They’re the EEOC’s investigators. Can I identify a problem and take it to the enforcement staff and say this is something I want examined? Yes. Actually that’s what we’re supposed to do.
We’re supposed to be always vigilant to make sure that we are reflecting what’s going on in our community. Now, do I make the decisions as to what goes to litigation? No. I make the recommendation and that has to be approved up the chain of command, and I have supervisors who I keep informed of what I am doing.
ML: Are there particular areas now that you’re looking into it you would like to, that you would talk about.
Laurie Vasichek: I can mention that there are certain issues of concern that are coming up within the EEOC. Religious discrimination, for example. We’re seeing some very disturbing claims of discrimination against Muslim employees. We’re also are seeing increasing number of claims of pregnancy discrimination. Those are things we’ve got our eyes on.
ML: I can certainly understand why the Muslim discrimination would be an ongoing challenge out there since 9/11/2001. I can’t get my mind around why pregnancy discrimination would be a growing issue right now.
Laurie Vasichek: There are actually quite a lot of reasons. One of the reasons that is often cited is economic. Fewer women are staying at home following childbirth. They’re returning to the workplace, so there’s increasing opportunities to incur discrimination.
Before, let’s say a person was terminated during pregnancy. She might elect thereafter to stay at home with their child, and she’s not going to necessarily then pursue a claim of discrimination. Because it’s heartbreaking to pursue a claim. Now, because of the economic factors, where they’re not interested or even considering leaving the workplace, they’re more likely to pursue charges.
That’s one of the factual reasons. Second, one of the legal reasons is that the law related to pregnancy discrimination has been impacted by the law relating to disability discrimination. The Americans with Disabilities Act has been broadened in such a way that it’s having an impact upon pregnancy discrimination claims.
Also just this term, the U.S. Supreme Court issued a decision relating to pregnancy discrimination, , which is going to have a lot of practitioners in this area pursuing the claims or defending the claims or just taking a hard examination of them.
ML: You have 30 years of experience. Tell us (1) a story of some of the best lawyering you’ve seen, (2) a story of the worst lawyering you’ve seen, (3) a story about the best judging you’ve seen and, finally, (4) the worst judging you’ve seen. The stories can be anonymous or can be autobiographical or whatever you want.
Laurie Vasichek: Well, the best lawyering I’ve seen was actually watching a trial that had my then-colleague Lloyd Zimmerman representing the EEOC. Lloyd, as you know, went on to become a Hennepin County District Court judge.
In this particular case there were an attorney representing the individual claimant, the charging party, Lloyd representing the EEOC, and then there was an attorney representing the employer. There are a lot of stories I have about that case, about how Lloyd was magnificent. He was just magnificent in that trial. My favorite story about that trial was the closing arguments.
The way it works in the Minnesota federal system is the defendant employer goes first in closing argument and then the employee–the plaintiff–has final opportunity to talk to the jury.
Here, the employer’s attorney stood up and gave them a really nice closing argument. He started by saying, “So, last night I was reading Voltaire and Voltaire said _______.” Okay, so then he does his closing and as I’ve said it was a very good closing.
He sits down and the plaintiff’s individual attorney stands up. He says, “Well, this morning I was talking to my young son and I told my son, ‘As Mark Twain said _______.” Then he proceeded to give a quote from Mark Twain. Also a really brilliant closing argument.
Then Lloyd stood up for the final argument to a jury. He said, “I have to tell you that I didn’t read Voltaire last night. And I didn’t think about Mark Twain this morning. In fact, what I did this morning is I got up and I made myself a bowl of cereal and I read Ann Landers. And as Ann Landers would tell you, you have to do the right thing…” The jury was mesmerized and they broke out laughing.
From that point on Lloyd had them in the palm of his hand. He had actually, I think, controlled the court room during the entire trial. I think what was so powerful about Lloyd was there was never any pretension about him as a trial attorney. He just talked to the jury.
He talked to the jury the way he talked to me in our offices. That’s the best lawyer. Not fancy. No great sparks. No slick use of technology. Just the clearest communication to a jury.
ML: How about worst lawyer story?
Laurie Vasichek: Oh, worst lawyer. I want to remain anonymous on the names. The worst lawyers I have ever encountered or at least that I have encountered in the last decade are opposing counsel who are bullies. Who take every opportunity to deride and hector me, my charging party, the staff. Who give no professional courtesies. Who blow up in the deposition, almost in what I would say is a rehearsed way. I guess they are trying to intimidate me or to intimidate my charging party.
I find that appalling. It doesn’t work, for one thing. I mean if you’re doing it as a technique, it’s not a very effective technique. I just think it does our profession is such disservice. That’s my worst lawyering.
ML: Best judge story? You don’t have to name names. That might put you in an awkward situation.
Laurie Vasichek: I’m going to name them, I’m going to name the name because it’s the best judge I’ve ever had practiced around is Judge Bright in the Eighth Circuit.
ML: You clerked for the judge, right?
Laurie Vasichek: I did, I clerked for him. He was a fantastic mentor and a fantastic friend. In maybe the first year I started practicing, he had a seminar which he asked me go to. The name of the seminar was, “Do you have to be an A-hole to be a good trial attorney?”
It was maybe life-changing for me. Because the answer was of course you don’t have to be an a-hole to be a good trial attorney. It was very interesting just, interesting isn’t the right word. It was very affirming to listen to someone who had been practicing as long as he had.
ML: What was his practice like?
Laurie Vasichek: He was a trial attorney. He was a very effective trial attorney, he worked for the Vogel law firm in Fargo. He also was like Lloyd Zimmerman, a plain-talker, no pretensions about him. He valued effective communication and writing and valued his friends.
When you practice for a while, at least in the employment discrimination area, you become friends with almost everyone else who’s practicing. Judge Bright taught me the value of being friends even if you’re opposing counsel.
ML: How about worst judge?
Laurie Vasichek: Without a doubt that goes to a judge, he shall remain nameless, but it was in a southern state where I was trying a case of race discrimination. He had no patience with the United States government bringing a case. Had no patience for government discrimination claims. It was a brutal case to try. It was brutal to try in a matter before a judge you felt was biased against bias claims.
ML: Was there any recourse at all?
Laurie Vasichek: No, he did nothing improper. He did nothing improper in the case that you could ever point to. It wasn’t overt in many instances but it was just a feeling of hostility, I guess.
ML: I didn’t know that you would try cases outside the district of Minnesota.
Laurie Vasichek: I’m part of the Chicago region first. That means I can be assigned cases anywhere within a six-state region. Moreover, the Commission prides itself was being a national law firm in its litigation. So I can be assigned to a case anywhere in the country. It’s a good way to get familiar with the practice of law in other jurisdictions.
ML: Do you have cases now pending outside the district of Minnesota?
Laurie Vasichek: I have two cases in Wisconsin.
ML: What are some top messages you would want to give employers to help them steer clear of employment claims?
Laurie Vasichek: Be honest as to the reasons why they’re discharging someone. If they are in fact discharging someone for performance reasons, follow whatever progressive disciplinary policy they have, so that it’s not a surprise to someone when they get terminated.
To tell them honestly what the reasons are. We have so many charges that come in to our office where the employer tried to soften the blow of the termination by telling the employee that they were being fired for some reason other the one that they actually were fired for. That employee then finds out that that’s a false reason… “They lied to me…”
“Given that they lied to me,” some conclude, “they must’ve had a discriminatory motivation...” Then the employer will come to us in the investigation and say, “Well you know what, we really fired him because he was just a bad employee. He was not doing the job. Look, here’s all our evidence…“
What are we supposed to believe? Are we supposed to believe the first reason, the false reason? Are we supposed to believe the later-acquired reason? Is the employer is telling us the truth in the investigation? They would’ve avoided the whole if they had given the honest reason first. If they had just been frank.
ML: Now let’s say an employee comes to you. The employee has reason to believe that they might be suffering from some adverse employment situation because of some illegal and discriminatory basis, whatever it is. What advice would you give the employee? The employee who thinks, “Everything is going against me here…They’re out to get me…It’s not legit.”
Laurie Vasichek: Take it to the employer’s human resources department.
ML: Then what?
Laurie Vasichek: Give them an opportunity to correct it or to explain it. The law requires it in some instances. If you’re talking about, for example, sexual harassment cases, your first step should always be to invoke the internal procedures of the employer unless there’s a good reason not to.
I’ve seen how well this can work in disability discrimination cases. Where the employee, for example, can’t do all the functions of their job perhaps because of some sort of disability. They believe they’re being marginalized because of the disability. The first thing to do is to take it to HR. HR will correct it in many instances, not all but many.
ML: I am not an employment lawyer and I don’t normally take employment cases. But because of market forces, lawyers sometimes just take a case that they’re not equipped to. I suspect that maybe employment cases are particularly a place where lawyers get in over their heads. Do you agree with that or not?
Laurie Vasichek: I do agree with that. Although I will say that at a general matter I see a lot of the same players from the employment bar, at least in the larger cases. I will see a lot of the same attorneys. The problem of the inexperienced attorney, I see on both sides, the plaintiff’s side and the employer’s side. It’s a shame. But the EEOC conducts independent investigations. Inexperienced lawyers can do damage to the case, but I would say it’s rarely irreparable damage.
The only truly irreparable damage would be attorneys who miss the charge-filing deadlines. Because there’s just no getting around that. There are no do-overs. There’s no second bite in the apple. If they miss the filing deadline and the charges are not filed with us in a timely manner, you could cost the employee their right to pursue a charge of discrimination offense.
ML: Any advice to new lawyers?
Laurie Vasichek: Call us. I get calls virtually every day from other attorneys.
ML: What’s the number?
Laurie Vasichek: 612-235-4040. Just ask to talk to someone in the legal unit. The second thing they should do is check our website. We have a fantastic website, everything is on there. We have a lot of guidance on the very specific issues that a person might be looking into.
ML: It seems to me that the 30 years of your practice had been a time of tremendous change for women in the practice of law. Would you agree with that?
Laurie Vasichek: Yes.
ML: After your clerkship with Judge Bright, you started off at Dorsey and Whitney?
Laurie Vasichek: I first clerked for Judge Bright for a year and then I went to Dorsey.
ML: Do you have any recollection of the ratio of men to women in your class?
Laurie Vasichek: I think we were very evenly split. Maybe 40/60 women, men.
ML: How would you describe the change in our legal landscape specifically from a perspective of a woman lawyer in the last 30 years, if you can. I know that’s a hard question.
Laurie Vasichek: Years ago, when I was at Dorsey & Whitney, I took a deposition in Rapid City, near Sturgis, South Dakota, where the large annual motorcycle gathering is. At the end of the deposition, my opposing counsel, who was a more senior male attorney, gave me a souvenir of my trip. It was a little coin purse and it said, “HOG Survival Kit,” on it. I thanked him. He told me to look inside and, inside, there was a condom.
I was speechless.
That kind of thing just doesn’t happen anymore. It’s no longer unusual to go into a room and see that my judge and my opposing council are females. That was very unusual when I started out. I remember that first time it happened; there was a conference in front of Judge Montgomery. It was a large class action.
There was an employer, a multinational corporation, whose attorney was female. The union had been bought in. The union lawyer was female. I was there representing the EEOC and there was Judge Ann Montgomery. Judge Montgomery remarked on it saying, how notable this event was.
It’s no longer that unique. The other thing I think that has stopped is a lot of the talk, the bantering that would occur just among the male lawyers who want to talk about different golfing outings they had. As a female attorney you sometimes felt isolated from that. I can’t remember the last time I have felt that way.
Maybe part of it is just, well I’m just so much more confident about asserting myself in the conversations; or it might just be a change of perspective. I mean, the attorneys now have all practiced with women. They’ve always had female attorneys in their immediate surroundings.
ML: You mentioned religious discrimination and pregnancy discrimination as growing areas in employment discrimination. Any other trends or developments you see generally in the subject matter area?
Laurie Vasichek: There is a growing number of cases that are a disparate impact cases. This type of case has been around for decades. You’re just seeing a lot more of them being brought in the court after probably a 15-year hiatus. There’s a lot of policy-based cases that are being brought under the Americans with Disabilities Act.
ML: You mean company policy?
Laurie Vasichek: Yes. For example, “no leave policies,” “100% healed policies,” restrictions on advancement. For example if there’s an employer policy that you have to be in a position for the three months immediately before promotion, and a person can’t achieve that because they’re been out for disability. Those are being challenged. Those are fun cases in my estimation. They are so legally based.
ML: They’re cut and dried.
Laurie Vasichek: Yes. They’re more cut and dried in theory perhaps than in practice but you’ve always got a very clear end goal.
ML: If you could send a message out to Minnesota lawyers to put in the soap box, what message would you want to communicate to them?
Laurie Vasichek: To be forthright in their communications with the EEOC. Don’t hide the ball, we’re just going to go looking for it. That they shouldn’t couch all their communications with us in legalese. We’re aware of what the case law is; you don’t have to tell us what the 8th Circuit says about sexual harassment or the ADA. We are aware of the laws. Tell us why you think your client was discriminated against. Or why your client didn’t do anything wrong. Just tell us.