Law Times

Law Times • march 31, 2014 Page 7 www.lawtimesnews.com COMMENT awrence Krieger has been at the van- guard of the lawyer and law student wellness movement for many years. As a member of the faculty at the Florida State University College of Law, he has conducted research in this area and has published everything from scholarly articles to practical handbooks on the subject. e best-known and most widely read of his works is a booklet for law students called e Hidden Sources of Law School Stress: Avoiding the Mistakes that Create Unhappy and Unpro- fessional Lawyers. It's simply the most com- prehensive and information-rich practical guide to law student wellness anywhere and is a must read for every law student. Krieger is at it again. In conjunction with his colleague, Kennon Sheldon, Krieger published a brand new, comprehensive study of lawyer and law student happiness last month called "What makes lawyers happy? Transcending the anecdotes with data from 6,200 lawyers." Given the current epidemic of unhappy and oen unhealthy lawyers, this information is timely. e study examined lawyer well-being through a look at five variables: choices in law school, legal career, and personal life, as well as psychological needs and motivations established by self-determination theory, a widely used approach towards human moti- vation focusing on autonomy, competence, authenticity, and relations to others. With data gathered from thousands of lawyers, the findings illuminated the fact that lawyer and law student priorities were of- ten "confused or misplaced." Mon- ey and prestige, factors typically given the greatest weight, were marginally correlative with lawyer happiness and satisfaction. On the other hand, psychological needs and motivation, which are factors given short shri in law school, strongly predicted ultimate lawyer happiness and satisfaction. One fascinating aspect in- volved examining the experi- ences of higher-earning lawyers in positions viewed as prestigious versus those working in public service-type jobs who typically earned less. Comparing these two specific groups, the study's authors found that both reported equal life satisfaction despite the disparity in income and objective career status. Further, the prestige group typically had a lower sense of well-being and higher alcohol use than their public service coun- terparts. In one particularly illuminating finding, the authors found that while the prestige lawyers had significantly higher law school grades, they reported a significantly lower state of belief in their competence. e study's authors made particular note of this "core dissonance between 'competence' as measured in law school (largely by grade performance), and a lawyer's ability to feel competent in actual law practice." eir find- ings also led to the conclusion that "greater affluence has little effect on whether lawyers feel happy from day-to-day." From the striking data col- lected, the authors conclude that to live a happy life as a lawyer, people don't need to focus so much on income, grades or pres- tige. Instead, the data showed that "finding work that is in- teresting, engaging, personally meaningful, and is focused on providing needed help to others" leads to the greatest opportunity for fulfilment in law practice. e authors also examined specific sec- ondary variables to assess their relative impact on happiness. In the area of work-related fac- tors, the number of vacation days taken and pro bono work hours correlated most with feelings of well-being while required billable hours had the most dampening effect. As the study's authors put it, "as billable hours go up, income goes up and happiness goes down." Other factors that affected individuals' sense of well-being included the negative impact of alcohol use and the positive im- pact of marriage or being in a committed relationship. Having children also increased feelings of happiness, as did regular physical exercise. Surprisingly, religious affiliation and relaxation practices such as mindfulness and yoga had a negligible impact. Other de- mographic indicators that had little impact included gender and racial or ethnic group. Older lawyers, however, were moderately happier than their younger colleagues. One final area related to whether legal professionals are different from members of the general population on the subject of happiness and satisfaction. Many believe lawyers think differently and, therefore, have different motivations and priorities com- pared to others. e study's authors com- pared their data to similar studies of non- lawyers and their conclusion is unequivocal: "Simply stated, there is nothing in these data to suggest that attorneys differ from non-at- torneys with regard to their prerequisites for feeling good and feeling satisfied with life. . . . In order to thrive, we need the same authen- ticity, autonomy, close relationships, sup- portive teaching and supervision, altruistic values, and focus on self-understanding and growth that promotes thriving in others." In other words, lawyers are people, too. In order to live fulfilling, happy lives, they need to honour who they are and the values they carry. is excellent study confirms that authentic adherence to internal needs and motivations trumps external social constructs about what people need to be happy. Being who we are — authentically — is all we need. LT uDoron Gold is a registered social worker who's also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's available at dorongold.com. Tribunals should take note of major sex harassment award he recent arbitral decision released in De- cember involving the City of Calgary and the Canadian Union of Public Employees Local 38 has given fresh attention to the remedy avail- able to a person who has suffered sexual harassment in an employment context. e case arose in the context of a unionized envi- ronment. e parties agreed, however, to refer all is- sues, including those raised by the grievor in her com- plaint before the Alberta Human Rights Commission and all tort claims she may have had, to the arbitration panel for determination. e victim, identified only by her initials, M.P., worked as a clerk earning approximately $30,000 annually. M.P. reported to Terry Mutton, a senior foreman who was a member of CUPE Local 709 and had held various executive positions with the union. According to the decision, Mutton sexually harassed M.P. on eight occasions in November 2010. e limited description of these events in the decision referred to "fondling while she was at her desk." Following her complaint, the employer took reme- dial action by installing an extension to M. P.' s desk that made it more difficult to approach her from behind. Mutton's boss then le for a one-week vacation and le him in charge. is conduct became the source of much criticism in the decision. e panel found the employer liable under the terms of the collective agreement for failing to ensure a safe workplace. e assaults by Mutton continued dur- ing the week of Nov. 29, 2010. M.P. contacted police who attended at the workplace on Dec. 15, 2010. Police charged Mutton on Jan. 5, 2011. He pleaded guilty and received an intermittent sentence in April 2012 of 90 days followed by two years probation. e day aer police laid the charges against Mutton, M.P. learned his boss would be her supervisor. She was admonished for the way she communicated with her co-workers and was instructed to show more respect to others. Upon her return to active employment following her absence at District 6, M. P.' s new supervisor advised her that any disrespectful actions would result in disciplinary action. Soon aer, she was asked to return various keys she had held for a long time as part of her job duties. Mutton resigned from the city on Jan. 28, 2011. He was then eligible for retirement benefits. M.P., meanwhile, was off work for sickness from March 2-13, 2011, due to post-traumatic stress dis- order. She was again absent on sick leave until June 8, 2011, when she began a one-year term in a clerical position in a different department at city hall. She re- mained in the job until Aug. 3, 2011. She hadn't returned to work as of the date of the hear- ing that began on Dec. 3, 2012. In August 2011, M.P. twice went to hospital due to suicidal ideations. e panel concluded that not only did Mutton sexually harass M.P. but also that the employer had failed to take proper remedial action and treated the grievor as a problem it had to manage as opposed to a victim needing support and that its actions contributed significantly to her plight. At the time of the hearing, an independent psycholo- gist retained by the city and the union concluded M.P. would need a period of two to five years to improve her ability to function. e panel made a $125,000 award of general damages. In making this assessment, the arbitration panel exam- ined past common law tort cases and arbitral authori- ties in view of the conclusion that M.P. had suffered life- changing injuries. It is clear the tort decisions ruled the day in determining the amount of the award. e sole human rights case mentioned was that of the Alberta Court of Appeal in Walsh v. Mobil Oil Can- ada involving a $35,000 award. e panel suggested the damages suffered by the complainant in Walsh paled in comparison to those proven in the case at bar, but the reality is that the sums ordered by the human rights tribunals generally offer minimal compensation under this head compared to tort claims. e complainant in Walsh succeeded in proving a lost income claim for five years due to emotional issues suffered at the hands of the employer, which is reflective of the damage in- flicted. ere is no precedent for such an award in human rights jurisprudence. e panel concluded a fair date to use for future income loss would relate to a likely return to work on July 1, 2018. e future income loss was, therefore, $512,149, a number reduced by a 10-per-cent risk factor and a discounted rate for a present payment of a future income stream of 2.25 per cent. e panel set the past income loss at $135,630 with a further pension loss of $68,242 less a present discount. e city made two submissions on the income loss. It suggested the panel shouldn't allow for a lost income claim as the union and the city had, by means of the col- lective agreement, negotiated a sum paid as wage replace- ment for those with a disability. e panel rejected that submission aer concluding that for such an argument to prevail, the collective agree- ment must specifically deny the grievor the right to a claim for lost income due to a human rights violation or other breach of the collective agreement by the employer. e panel added that even if there was such a provision, it would likely fall afoul of human rights protections. e city also argued the disability sums received should offset the lost income claim. But the panel found that as employee contributions funded the insurance payments, they were within the rule established in Cun- ningham v. Wheeler that denied the wrongdoer the ability to set off insurance benefits funded by the innocent party. e panel decision was a 2-1 split. e city nominee on the panel dissented apart from his agreement that it shouldn't award punitive damages. e decision is reflective of the nature of the dam- age awards that may be possible in a case of sexual as- sault. While the decision doesn't describe the wrong- doer's conduct in any significant detail, it is apparent it involved the actions of a person in authority against a vulnerable subordinate that were intentional and that forcible contact occurred repeatedly. e rationale of the general award is clearly tort driven and, if anything, should be higher. e human rights tribunals need to take note of this decision. LT uDavid Harris, a former lawyer, is one of authors of the new book Disability Issues in Employment Law. u SPEAKER'S CORNER Authenticity, not money, key to lawyers' happiness The Lawyer Therapist Doron Gold L BY DAVID HARRIS For Law Times T

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