"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 on July 29, 2013 7:00 AM | | Comments

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.

Noting that firing Benes would have been appropriate, if during the mediation, "Benes had punched or shot the employer's representatives" -- you think? -- the Seventh Circuit concluded that even though "his misconduct was a less-serious breach of the mediation protocol," firing Benes was still for employee misconduct, and did not amount to retaliation.

Indeed, just because an employee files a charge of discrimination, or complains internally about discrimination, doesn't insulate him from potential punishment. Retaliation encompasses action that would dissuade a reasonable worker from making or supporting a charge of discrimination. As the Seventh Circuit noted, canning an employee who shoots off his mouth at mediation, not so much:

"The prospect of being fired for an egregious violation of a mediator's protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC's investigation."

I often raise this issue when offering "respect in the workplace" training for employees. That is, just because an employee complains about discrimination in the workplace place doesn't mean that he has carte blanche to violate work rules. The complaint only protects the employee from discipline because of the complaint. If, instead, that employee decides to stop performing job duties, or responds with "shove it up your ass and fire me and I'll see you in court," now you'll know what to do.