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The Employer Handbook BlogAre lots of your severance agreements retaliatory? EEOC says yes.
When your business offers a severance agreement to a departing employee, does it contain:
- a general release;
- a non-disparagement obligation;
Articles Posted in Retaliation
Employee claims discrimination, then her friend gets fired. Is that retaliation?
Back in January 2011, when I had only one child and an Aston Martin savings fund, the U.S. Supreme Court decided Thompson v. North American Stainless, LP. In that case, the Court held that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same “zone of interest” as another employee who files a Charge of Discrimination with the United States Equal Employment Opportunity Commission.
In Thompson, a company received an EEOC Charge of Discrimination and allegedly fired the employee’s fiancé in response. The Supreme Court held that, if true, this set of fact would amount to retaliation.
Now, fast forward to 2014. I have four children, I’m two Happy Meals away from declaring bankruptcy, and, last night, I dined on the leftover ketchup packets.
And we have an early contender for worst employment-law decision of 2014
That may be sugar coating it a bit.
A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.
That’s right. An employee may have a discrimination claim for receiving the specific transfer he requested.
Employee legally fired for complaining on Facebook about the boss’ “creapy hands”
Generally speaking, those who wait five years to complain about perceived sexual harassment in the workplace, don’t win lawsuits if they are eventually fired.
But what happens when the complaint takes the form of a status update on Facebook? Does that offer the employee extra protection?
Find out after the jump…
Woman fired after getting sniffed by men 24 times may have a retaliation claim
Play some Skynyrd, man!
(Just pretend the song is about reckless indulgences in the workplace, rather than drugs and needles and such, k?)
Well, this is a new one for me.
Placing do-not-hire notes in personnel files of employees who file EEOC charges is dumb
If I ever handled a plaintiff’s case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:
Ask the manager who decided to fire the plaintiff whether he’s eligible for re-hire. An unprepared manager might blurt out, “Of course not; he’s suing us.” Say hello to a retaliation claim.
I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters “prompted” it to place the following notes on the Charging Parties’ personnel files:
Court ok’s firing EAP employee upset with company’s workplace investigation
J. Neil DeMasters worked as an EAP counselor for Carilion Clinic. During the course of his employment, a co-worker came to him complaining to have been a victim of sexual harassment. Mr. DeMasters relayed his co-worker’s complaint to HR. Then he was fired.
Does Mr. DeMasters have a possible retaliation claim? Nope.
DeMasters’ statements to Carilion’s human relations department qualify as protected oppositional conduct. There are no allegations in this case that DeMasters played any role in Doe’s sexual harassment complaint beyond counseling Doe through the EAP and relaying Doe’s complaint to Carilion’s human relations department. Merely ferrying Doe’s allegations to Carilion’s human relations department is in no sense oppositional, and DeMasters did not engage in protected activity in so doing…. DeMasters intended only to relay Doe’s complaints to Carilion, not voice his own opposition to any unlawful employment practice, such as the sexual harassment or hostile work environment alleged by Doe.
What could possibly go wrong with a sham workplace investigation?
Well, if it means that the employee diagnosed with anxiety and depression — the one who requested a reasonable accommodation to perform her job — gets fired. Well, then, a lot.
That’s basically what happened in this recent federal court case out of Kentucky.
You see, normally, a court won’t second guess an employer’s decision to terminate an alleged sexual harasser, following a complaint and investigation. And when the alleged sexual harasser later sues the employer for retaliation, well, I don’t care if she belongs to every protected class on the EEOC’s checklist, court’s tend not to sympathize with sexual harassers.
“You can take your proposal and shove it up your ass and fire me and I’ll see you in court.”
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.