Retaliation

“You can take your proposal and shove it up your ass and fire me and I’ll see you in court.”

July 29, 2013 | by Eric B. Meyer

Just another Monday here at The Employer Handbook. It’s how we roll.

Over the weekend, I read this opinion from the Seventh Circuit Court of Appeals. From the opening paragraph, it had my attention.

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Benes stalked out, leaving the employer’s representatives shaken. Within an hour A.B. Data accepted Benes’s counterproposal: it fired him. He replied with this suit under 42 U.S.C. §2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination has been abandoned.

900,000 reasons not to judge a book by its cover

July 24, 2013 | by Eric B. Meyer

You’ve probably heard of this It’s Just Lunch, a Hallandale Beach-based company, even though you may not realize it. I’ll give you a hint. Have you flown recently? Yeah, that’s right. It’s Just Lunch is a matchmaking service that advertises around page 55 of the in-flight magazine of just about every domestic airline.

According to the company’s About IJL page, It’s Just Lunch was founded in 1991 by a resourceful, professional woman. Now go to the home page, scroll down the page to the right and look at the pictures of the It’s Just Lunch “Dating Specialists.” Notice anything in common?

Yeah, the EEOC did too. So, it filed this complaint in federal court.

Supreme Court delivers two — count ’em TWO — wins for employers

June 25, 2013 | by Eric B. Meyer

This week, I am on vacation. The Supreme Court didn’t get my memo. Fine. But, I’m not putting down my beer to write this post. So, you get a one-handed rundown of the two employment-law decisions the court issued yesterday.

Pardon my typos after the jump…

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I’ll take Supreme Court Justices on retaliation for $500, Alex.

April 25, 2013 | by Eric B. Meyer

Thumbnail image for Supreme Court.jpg

Yesterday, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar. In this case, the Court is being asked to determine what a plaintiff’s burden of proof is for a Title VII retaliation claim.

Is it mixed motive? In other words, is it enough that retaliation motivates an adverse employment action?

Or does a plaintiff have to prove that retaliation was the reason that adverse employment action was taken?

POLL RESULTS: Here’s what you said about the #Donglegate firing

March 28, 2013 | by Eric B. Meyer

For much of the week, I’ve blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards’s employer, SendGrid, to fire her “fair” or “unfair”? “Fair” and “unfair” were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%).

POLL: Was the #Donglegate firing fair?

March 26, 2013 | by Eric B. Meyer

Whew!

Got a little carried away with yesterday’s post about the employee who got fired for tweeting complaints about discrimination, didn’t I?

Then again, I’m not the one who came up with the hashtag #donglegate.

Employee gets fired for tweeting complaints about discrimination

March 25, 2013 | by Eric B. Meyer

Is this Retaliation 2.0?

Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained…on Twitter:

Not cool.Jokes about forking repo’s in a sexual way and “big” dongles.Right behind me #pycon twitter.com/adriarichards/…

— Adria Richards (@adriarichards) March 17, 2013

And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.

Hey @mundanematt, it’s clear from the last 24 hours you’re a bully.@sendgrid supports me.Stop trolling.

— Adria Richards (@adriarichards) March 20, 2013

That same day, SendGrid, Ms. Richards’s employer, fired her.

(Jon Brodkin at arstechnica.com has the full story here).

We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.

But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?

Find out, after the jump…

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Is rejecting a sexual advance, without reporting it, protected activity?

March 18, 2013 | by Eric B. Meyer

Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It’s been that way since 2010.

There are three essential elements of a retaliation claim: (1) protected activity — opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.

This post focuses on “opposition to discrimination.” Specifically, is withdrawing from what one perceives to be a sexual advance by one’s employer opposition to discrimination and, thus, a protected activity?

The answer after the jump…

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An EEOC complaint is not your free pass to goof off at work

March 11, 2013 | by Eric B. Meyer

Or sexually harass your co-workers.

Unless, of course, you consider my working Hollywood manuscript: “An EEOC Complaint Is Your Free Pass to Sexually Harass.” I know, the title needs work, but with ~~C. Thomas Howell~~, ~~Tawny Kitaen~~ real star power and a producer.

** Immediately regrets sixth shot of Drambuie with breakfast **

There’s a point to all of this, and some employer tips too, after the jump…

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