Articles Posted in Retaliation

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Yesterday, I had one of those moments. You know the ones.

For me, it was when a client asked me when I was going to blog about the Muslim workers in Colorado who were denied prayer breaks and, then, allegedly fired for protesting.

So, I did what any self respecting employment-lawyer-blogger would do: I Googled “Muslim Prayer Employee Protest Colorado Fired,” and I promised a client-inspired Wednesday post.

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Macaca nigra self-portrait large.jpgLast year, I discussed (here) a case in which the United States Equal Employment Opportunity Commission sued an employer for retaliation under Title VII. Now, retaliation is the most common claim employment discrimination claim. But, what made this particular claim unusual was the EEOC’s attack on the employer’s use of knife-wielding monkeys to coerce settlement fairly common settlement provisions that you guys probably use in your severance agreements (e.g., a general release, a non-disparagement obligation, a confidentiality provision, a covenant not to sue, and a cooperation clause).

Late last year, the Seventh Circuit Court of Appeals weighed in. And it didn’t end well for the EEOC.

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Apple with a bite taken out of it
In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.

Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:

  1. An administrative law judge concluded that the employee was fired because he filed a FLSA collective action. By this time, in the federal court action, the parties had barely scratched the surface on taking discovery and the federal court had yet to certify a class. (Ultimately, the FLSA action was settled amicably in federal court, without any finding of liability).
  2. This decision could prove incredibly broad. For example, how about an employee who claims that he was fired for participating as a witness in a workplace investigation of discrimination, or because he cooperated with the EEOC? Indeed, a logical extension of lask week’s NLRB decision is that the witness’s involvement implicates the terms and conditions of employment for at least two other employees, the victim and the alleged harasser. That sounds like Section 7 activity.

Obviously, the easy solution is don’t discriminate and don’t retaliate. But, lawsuits are based on a series of allegations. And, what percentage of employment lawsuits actually result in a finding of liability? Thus, even the appearance of wrongdoing may be enough for a second bite at the apple with an unfair labor practice charge decided by an Administrative Law Judge.

Image Credit: Grm wnr at the English language Wikipedia [GFDL or CC-BY-SA-3.0], via Wikimedia Commons

Last year, I channelled Bill Clinton in this blog post about how courts rarely recognize a single incident or two as creating what the law deems a hostile work environment.

Yeah, about that.

Even a few isolated comments can create a hostile work environment.

In Boyer-Liberto v. Fontainebleu Corp. (opinion here), the full panel of the Fourth Circuit Court of Appeals concluded that two aggressive racial slurs made to an employee within a 24-hour period, may create a hostile work environment. (Here, the plaintiff, who is African-American, was twice called a “porch monkey.” And, each time, the harasser threatened the plaintiff).

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Folks, let me give you a little free Friday HR pro tip:

If a female employee complains to a female manager that another male manager is sexually harassing her, it’s not ok to for the female manager to respond thusly,

“He’s a guy and you work with guys. Ignore it and smile.”

That’s bad. Worse than pooping on a warehouse floor. (Even worse with the music I selected)
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When I think about retaliation, I think about that time I plastic-wrapped the judicial toilets after losing a motion to compel an employee who gets fired after complaining about discrimination to an HR Manager or the EEOC. These actions epitomize the “opposition” and the “participation” clauses of Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute.

By what about when an employee doesn’t go to HR, doesn’t complain to the EEOC, but, instead, simply tells a supervisor to stop sexually harassing her? If that employee is later fired, and she can establish that she was fired because she told her supervisor to stop, is that a winning retaliation claim? Continue reading