Articles Posted in Retaliation

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.

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.

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?