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.
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…
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.
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:
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.
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.
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.
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.
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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