This happened at the end of July, in the Seventh Circuit Court of Appeals in an opinion authored by acclaimed jurist Judge Easterbrook, but I just had a chance to finally read it. Perhaps you’ve heard about it on the radio or news.
The opinion, in a rare turn for Court of Appeals opinions, gets the reader hooked right out of the box:
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.
This decision raises an issue that should make all employers sit up and take notice – can an employer still discipline an employee after the employee has filed a civil rights or other employment claim?
What Are You Allowed to do When an Employee Makes a Discrimination Complaint?
Legally, just because an employee files a discrimination charge or makes an internal complaint about discrimination, this does not make the employee immune to discipline. Practically, though, employees can (and often will) raise a stink about any discipline they receive after a complaint, and simply add a retaliation charge to the mix.
The law defines retaliation as any action that might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Here, though, the Seventh Circuit noted that, the prospect of termination for telling an employer take its proposal and “shove it up your ***” would not discourage a reasonable worker from making a charge of discrimination or participating in the EEOC’s investigation.
Put in other words, the Court referenced another of its decisions, that participating in activity protected by Title VII of the Civil Rights Act does not insulate an employee from being discharged “for conduct that, if it occurred outside an investigation, would warrant termination.”
I suggest applying what I call the 90% rule to this scenario. For example, on the advice of one wise lawyer with whom I practice, I only make objections during a jury trial if I’m 90% sure the judge will grant or sustain the objection — I don’t want the jury to think I’m being obstructive.
In this scenario, if you want to discipline or terminate an employee who has participated in conduct protected under the Civil Rights Act, you better be 90% sure that you can justify the discipline with employees who have been similarly disciplined, a clearly defined workplace policy, or other evidence.
At least you know what to do if your employee does this …