The Employer Handbook Blog

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?

You can find a copy of the transcript from yesterday's oral argument here.

But before you pour through it, let's see how well you know your Supreme Court Justices.

Take the quiz and see if you can tell who said what during oral argument.

For much of the week, I've blogged about Adria Richards, the employee who got fired for tweeting complaints about discrimination. On Monday, I offered my legal analysis (here).

On Tuesday, I followed that up with this simple poll that purported to remove the law from the equation: Was the decision of Ms. Richards's employer, SendGrid, to fire her "fair" or "unfair"? "Fair" and "unfair" were the only two answers and they were randomized such that either one could have appeared as the top choice when taking the poll.

Now the results are in. 129 of you responded and 70 of you (54%) said that the firing was fair. 59 respondents indicated that the firing was unfair (46%). 

I'm assuming that most of my readers and, therefore, most of the respondents have an HR or legal background. Therefore, I will further assume that, while the results here are quite balanced, had I asked the question whether the firing was "lawful" or "unlawful," the results would not have been nearly as close.

Thank you to everyone who participated.

Whew!

Got a little carried away with yesterday's post about the employee who got fired for tweeting complaints about discrimination, didn't I?

Then again, I'm not the one who came up with the hashtag #donglegate.

Yesterday, I offered my legal analysis. Today, I want your non-legal opinion:

Is this Retaliation 2.0?

Two weeks ago, Adria Richards attended an industry conference at which she overheard sexual jokes from two attendees sitting behind her during a session. So, she complained...on Twitter:

And then she blogged about it here. The social-media complaints resulted in one of the joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her employer supported her.

That same day, SendGrid, Ms. Richards's employer, fired her.

(Jon Brodkin at arstechnica.com has the full story here).

We can argue about the propriety of using social media to publicize a harassment complaint, especially when a private complaint could have sufficed. Still, the SendGrid response certainly seems harsh and unfair.

But did SendGrid go so far as to retaliate (as a matter of law) against Ms. Richards?

Find out, after the jump...

Continue reading "Employee gets fired for tweeting complaints about discrimination" »

Of all employment claims presented to the Equal Employment Opportunity Commission, retaliation numero uno. It's been that way since 2010.

There are three essential elements of a retaliation claim: (1) protected activity -- opposition to discrimination or participation in the statutory complaint process; (2) adverse action; and (3) causal connection between the protected activity and the adverse action.

This post focuses on "opposition to discrimination." Specifically, is withdrawing from what one perceives to be a sexual advance by one's employer opposition to discrimination and, thus, a protected activity?

The answer after the jump...

Continue reading "Is rejecting a sexual advance, without reporting it, protected activity?" »

Or sexually harass your co-workers.

Unless, of course, you consider my working Hollywood manuscript: "An EEOC Complaint Is Your Free Pass to Sexually Harass." I know, the title needs work, but with C. Thomas Howell, Tawny Kitaen real star power and a producer.

** Immediately regrets sixth shot of Drambuie with breakfast **

There's a point to all of this, and some employer tips too, after the jump...

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Continue reading "An EEOC complaint is not your free pass to goof off at work" »

 No body shots here; just a swift federal court kick to Coyote Ugly's social-media jewels.

You get the ice. I'll pour a double and serve up the details after the jump...

Continue reading "Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?" »

What makes retaliation the most common discrimination claim in America?

I suspect it's because other forms of discrimination (e.g., race, gender, disability) are more difficult to prove and don't always result in an adverse employment action, such as termination of employment. And since most people like to keep their jobs, they're more reluctant to rock the boat.

Conversely, retaliation always includes adverse action -- quite often a firing -- and follows what the law terms a "protected activity" (opposition to discrimination or participation in the statutory complaint process). So, you have a situation where an employee suspects discrimination is afoot, complains about it, and then gets fired. 

Retaliation salt rubbed in an open discrimination wound. 

So, any Supreme Court ruling affecting the standard for proving retaliation is big news.

Last Friday, the U.S. Supreme Court agreed (here) to decide what level of proof a plaintiff must establish to prevail on a retaliation claim. Here is the question presented to the Court:

Whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

In Centucky Kentucky, it's not retaliation to fire employees who complain about sexual favoritism.

Then again making apple-pie moonshine and using a butcher cleaver to slice off the arm of a Detroit gangster isn't frowned upon either. At least, that's what watching Justified teaches me.

But even in Kentucky, they have laws. No, it's true. 

After the jump, you'll see a KY federal court's rationale for the latest sexual-favoritism ruling. And I'll provide some tips for dealing with employees who complain about cushy assignments given to employees who get freaky with management.

Continue reading "Court countenances canning complainers of consensual canoodling" »

Sounds like a bad batch of Pennyroyal Tea. Just another Tuesday here at the ole Handbook.

The San Francisco Chronicle is reporting here that Courtney Love, Kurt Cobain's widow, is reuniting the band ** thank you for sparing our ear holes ** being sued by a former assistant seeking, among other things, unpaid overtime. The plaintiff also claims that Love asked her to perform voodoo rituals ** not yet, next paragraph ** unethical duties such as hiring a hacker and forging legal correspondence. The San Francisco Employment Lawyer Blog has more on this case here.

From Hole to holes in a doll pin-cushion, with a hat-tip to @ChaimBook, the Madison St. Clair Record reports here that a Wisconsin woman is suing her former employer for sexual harassment and retaliation. The plaintiff claims that she was forced to look at nude female magazines, calendars and sexually explicit language used by her co-workers and direct supervisor. Fairly standard sexual-harassment fare. What makes this case blogworthy is that, after she complained, the plaintiff allegedly suffered retaliation in the form of two voodoo dolls in her desk, one of which had a black pin stuck into her chest.

Takeways:

1. Even for the savviest employers, wage-and-hour issues can rear up from time-to-time. If you have not done so yet, or if it's just been a while, consider bringing in outside counsel to conduct a wage-and-hour audit to make sure that your pay practices are squeaky clean.
   
   
2. Since the Supreme Court's decision in Burlington Northern, the bar has been significantly lowered as to the type of behavior that can constitute actionable retaliation. I have little doubt that a voodoo doll delivered to a complaining employee would effectively chill that employee from asserting federal-protected rights. Remind your workforce that behavior both subtle and overt can lead to a retaliation claim. 
   
   
3. Hole sucks.

If an employee complains that her supervisor is sexting her, making unwelcome physical contact, and telling her that she can get a better work schedule in exchange for "small favors," you better damn well investigate that!

Ignore it and you risk losing a valuable defense to sexual harassment claim. This is because, generally, to avoid liability for sexual harassment, an employer must demonstrate that it undertook reasonable care to prevent and promptly correct harassment.

But the failure to investigate could cost an employer even more. Like a dead-to-rights retaliation claim too.

Really? Retaliation too? Yes. I'll explain after the jump...

Continue reading "Employer's failure to investigate harassment creates retaliation claim" »

Billed as a way to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, the Paycheck Fairness Act, did not make it out of the Senate yesterday. The Paycheck Fairness Act earned 52 votes in favor of proceeding to final consideration, eight votes shy of the 60 votes necessary for cloture. The vote came down strictly along party lines, with the two independent senators voting with the Democrats and Sen. Mark Kirk (R-Ill.) not voting. Senate Majority Leader Harry Reid (D-Nev.) changed his vote so that he could bring the bill up again.

In other news...

• The Eleventh Circuit Court of appeals ruled on Monday that Title VII of the Civil Rights Act of 1964 permits claims for retaliatory hostile work environment. The decision brings the Eleventh Circuit in line with everyone else.
  
  
• The EEOC is touting a rare summary judgment victory in a Title VII retaliation case. A federal judge ruled that an employer unlawfully retaliated against an employee for refusing to waive his rights to file a discrimination charge as a part of a "last chance agreement."
  
  
• And here's a weird one, a woman in Florida is suing for unpaid OT. That's not so weird. What is; however, is that, although she appears on the payroll, no one remembers hiring her, and no one remembers her ever working for the business.

A long-time county employee in Florida, who served as HR Manager, is set to file a federal discrimination complaint against her former employer, claiming that she was sexually harassed at work and later fired after complaining. The employer claims that it fired the employee for making false sexual discrimination claims to the U.S. Equal Employment Opportunity Commission.

And then there's the porn and dirty texts...which the employee's boss admits sending...to the employee...like 40 times...

Interest piqued? I thought so. Click through...

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Continue reading "Boss fires HR Manager to whom he sent w-2 (by w-2, I mean lots of porn)" »

A recent survey by Workplace Options, shows that most Generation-Y employees believe that an office romance will have a positive influence on performance and overall workplace morale.

Sounds like a Cialis commercial. 

Who says I need to wait for Valentine's Day for this post? Losers, that's who. Lock the broom closets and click through for more on this survey and ways to address the office romance...

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Continue reading "More office romances; more anti-harassment training" »

Workplace retaliation was the last thing on the mind of Cobra Kai Sensei John Kreese when he told Johnny to sweep the leg. 

Similarly, workplace retaliation was likely the last thing on the mind of the defendant-employer, in Thompson v. Morris Heights Health Center, when it sent out a late COBRA notice to the plaintiff, a former employee that had filed a Charge of Discrimination with the EEOC. The court held that an employer is not liable for retaliation where the employee: (1) received the opportunity to enroll retroactive to the date the employee's health insurance ends, (2) turned down COBRA in favor of Social Security Disability benefits, and (3) did not seek subsequent employment.

And now that we have that clear...