What we here have found interesting about all the controversy surrounding Paula Deen recently is that it all stems from an employment discrimination lawsuit filed by a former employee. As a former attorney that has brought many of these types of cases before, I have been left wondering whether Deen and her attorneys regret not trying harder to settle this case before it became public and she lost most of her sponsors and TV contracts. But first, let’s backtrack and take a look at the lawsuit and deposition that started this whole mess.
The Complaint: Lisa Jackson v. Paula Deen, et al.
The complaint against Deen and her brother (Bubba Hiers) is unremarkable in the context of the hundreds of similar lawsuits filed each day around the country. Basically, the plaintiff alleges that she was an employee at one of Deen’s restaurants in Savannah, Georgia and was paid less than male colleagues and subjected to inappropriate sexual harassment (including crude jokes and pornography) and racial comments (though the plaintiff is white, she alleges that she was uncomfortable with racial comments). What is interesting to note is the complaint (click here to download) only attributes a few comments to Deen and instead focuses primarily on Deen’s brother:
- Paragraph 21 alleges that Deen said the following when the plaintiff was promoted to GM of the restaurant: “I am going to do something I have never done. I am going to put a man in a woman’s job.” (In her deposition, Deen denied ever saying this.)
- Paragraph 61-62 alleges that, referring to plans for her brother’s wedding: “I want a true southern style plantation wedding” which she explained meant she wanted “a bunch of ni—rs to wear long-sleeve white shirts, black shorts and bow ties” but that she couldn’t do that “because the media would be on me about that.”
The remainder of the complaint includes allegations against other employees of the restaurant and Deen’s other employees. While the overall allegations of the complaint are pretty salacious, the filing of the complaint didn’t generate a great deal of press (here and here are two articles) – at least nowhere near as much press as Deen’s deposition testimony. Also, Deen didn’t lose any sponsorships or TV deals as a result of the filing of the complaint and that is probably because most people realize that anyone can say whatever they want in a complaint, but whether they can back it up is another story.
After the filing of the complaint (or before in many cases), there is usually some effort by both sides to settle the case. All of these types cases boil down to money: how much is the defendant willing to pay to make this go away and avoid the potential financial and media exposure that comes with a public trial. Here, it’s not clear from the docket whether there was any attempt to settle or mediate this case; instead, it appears that both sides dug their heels in for a very contentious litigation. In fact, the docket for this case is one of the most heavily litigated for any single plaintiff case that I have ever seen – there was 200 separate documents filed with or by the court over a 13 month period – which is nearly unheard of. So it looks like Deen’s attorneys took the approach that they would fight this tooth and nail (and probably spent over $1 million dollars in attorney time doing so), but one thing that they couldn’t avoid was Deen being deposed at which time the plaintiff’s attorney would have nearly unfettered access to ask her almost anything he wanted.
Paula Deen’s Deposition (Transcript)
Deen was deposed on May 17, 2013 for a little less than a full day. Usually, the attorney for someone being deposed would spend at least a day or two preparing a witness for a deposition. With someone of Deen’s stature who has much more to lose, you would probably want to spend the better part of a week preparing her for her deposition. But in this case, it doesn’t seem like Deen had any preparation for her deposition. Instead, it appears their strategy was to have Deen come in and try to use her trademark “Southern charm” to try to disarm the plaintiff’s attorney. Had she been prepared, it’s unlikely that she would have offered any of the following:
Q: Have you ever used the N word yourself?
A: Yes, of course.
Q: In what context?
A: Well, it was probably when a black man burst into the bank that I was working at and put a gun to my head.
Q: And what did you say?
A: Well, I don’t remember, but the gun was dancing all around my temple… I didn’t — I didn’t feel real favorable towards him.
Q: Well, did you use the N word to him as he pointed a gun in your head at your face?
A: Absolutely not.
Q: Well, then, when did you use it?
A: Probably in telling my husband.
Q: Okay. Have you used it since then?
A: I’m sure I have, but it’s been a very long time.
What jumps out about the above is the cavalier nature that Deen admits that she has used the N-word in the past. Rather than try to dance around the question, she openly admits it as if there could be no doubt that she had used the slur before – though the only time she specifically recalls using the slur is when she had a bad experience with a black person. But Deen gets herself into trouble later even through the manner in which she denies using the N-word:
And I remember telling them about a restaurant that my husband and I had recently visited…. The whole entire wait staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie. I mean, it was really impressive. And I remember saying I would love to have servers like that, I said, but I would be afraid that somebody would misinterpret. . . . That’s what made it so impressive. These were professional. I’m not talking about somebody that’s been a waiter for two weeks. I’m talking about these were professional middle-aged men, that probably made a very, very good living … at this restaurant. They were trained. [I]t was the whole picture, the setting of the restaurant, the servers, their professionalism.
Here, Deen seems to think that because she believed these black servers were so “professional” that it was okay – almost like others refer to African-Americans that don’t fit their preconceived stereotype as articulate or “bright and clean.” But Deen also misses the point because she thinks it okay to want an all black staff, as long as they are “professional.” When Deen was also asked whether she used the N-word to refer to the all black staff at this restaurant, she responded, “No, because that’s not what these men were. They were professional black men doing a fabulous job.” Deen’s response seems to indicate that she subscribes to the Chris Rock distinction between the N-word and other black people.
Deen then went on to explain that the “restaurant represented a certain era in America” when black men and black women – who Deen admitted were slaves – waited on white people. Deen tried to explain: “I did not mean anything derogatory by saying I loved their look and their professionalism.” Whether intentionally racist or not, Deen’s explanation harkens back to the arguments that many use to defend the flying of the Confederate Flag.
Deen also gets herself into trouble when asked about racial jokes told by others:
Q: Does [your brother’s] sense of humor include telling jokes of a racial nature?
A: I’m sure those kind of jokes have been told. Every man I’ve ever come in contact with has one.
In an nutshell, Dean is saying that it’s okay to tell racial jokes because everyone does it. This is an amazingly cavalier approach to take to discrimination, especially in the context of a race discrimination lawsuit and I am sure that her lawyer cringed when he heard this testimony as he sat next to her. The simple fact is that this is probably the worst way that she could have defended against these allegations.
On June 11, plaintiff’s counsel filed a copy of the deposition transcript in opposition to a motion that Deen’s counsel had made. Once that deposition was filed with the court, it was a public document and anyone with a PACER – an account that lets you pay to view documents filed in federal court – could access the document. While Deen’s attorneys initial tried to control the scandal, it soon spiraled out of control and was probably worsened when Deen failed to show up for an interview on The Today Show and instead released a series of her own apology videos. Shortly thereafter, the Food Network announced that it would not be renewing its contract with Deen after 11 years. Deen was then dropped in quick succession by QVC, Smithfield Foods, Walmart, and Caesar’s Entertainment.
How Deen Could Have Avoided This
At the end of the day, it’s not hard to see why these sponsors and corporations had to cut ties with Deen: any controversy like this is bad for business. For these companies, there is such a thing as bad publicity and Deen had simply become nuclear. While it’s always easier to play monday morning quarterback, it should have been obvious to Deen (and even more so to her attorneys) that she had much more to lose in this lawsuit then she had to gain by fighting it out. I bet she wishes she could go back now and offer some type of settlement (even one in the mid-six figure range) to simply make this go away.
UPDATE (7/12/2013): Looks like Paula Deen realized what a mess her attorneys got her into and has hired new counsel: http://www.today.com/food/paula-deen-fires-lawyers-hires-powerhouse-team-6C10607874