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It should be pointed out that statistics are NOT just used when there is a lawsuit; indeed, it may be too late by then!
Many large organizations use statistics to examine the impact of decisions (e.g., layoff, promotion) before they finalize them.
One important issue an HRM manager needs to be concerned with is whether the statistical analyses represent privileged documents, or whether they might be discovered by a plaintiff if litigation ensues.
The bottom line for HRM managers: What you don’t know can hurt you; just make sure you check with your attorney first!
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Comments
I’d add that it’s a good rule of thumb to regard any document or information as possibly subject to release should the right interrogatory or subpoena come along. Salaries and such are rarely considered proprietary information the way that say, the per-procedure payment schedule used by a particular health insurance plan. Although it’s true that some things really are privileged, by consistently using this rule of thumb HR folks and line managers can both get into the habit of using legally defensible information to make legally defensible decisions.
I’ve still had employees sue, but by taking the assume-a-fishbowl approach, it means that my attitude in the face of a suit is, “bring ‘em on; I’m not afraid of discovery.” Our loss ratios show it too. Because of this I tend to recommend that everything be treated as though someone else can get their paws on it — even though it may later be discovered that they can’t.
Catherine’s approach is right on.
In fact, if the information is good and/or you utilize it properly (e.g., a well-conducted harassment investigation), you may be better off not trying to privilege it by putting it in an attorney letter, as later use may entail waiver of privilege and there may be other things you’d like to keep privileged.
Catherine: thanks so much for continuing your loyal readership; your comments are welcome anytime.
You see, this is a plug for using BOTH attorneys and statisticians!
My gut feeling on the privilege issue is that documents containing discussion of the IMPLICATIONS of a statistical analysis could perhaps be protected by attorney-client privilege if in the form of correspondence with the attorney for purposes of legal advice.
But the underlying numbers are what they are, and are of course discoverable. Once a statistical analysis has been made, it would seem fair game to ask HR in interrogatories or deposition if any analysis was undertaken, and if so what tests were used, and what the results were.
Document-wise, it may make sense to separate discussion of the implications from summaries of the numbers and the raw statistical analysis.
Any of the attorneys reading this blawg have a different take?