“Perverse and absurd,” today’s post isn’t really as fun as it sounds.

Giphy.com

Not even close to that fun.

No, it’s about a guy who got fired after his employer concluded that he had gained unauthorized access to its electronic files. It just so happens that the plaintiff accessed those files to assist his employer in defending two discrimination actions that other employees had pending against the employer. Either way, because of the firing, the plaintiff alleged retaliation.

How can firing an employee who is trying to help his employer with discrimination claims be considered retaliatory? See, e.g., the headline of today’s blog post.

I’ll explain.

Or better, yet, I’ll let Judge Bissoon do the honors:

Plaintiff’s participation in the investigation is not protected because he admittedly was defending his employer against the discrimination claims filed with the EEOC, as opposed to supporting the allegedly aggrieved employee….[A]n employee who opposes or participates in a proceeding against an employer’s activity must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII, in order to be afforded protection. This exposes the counter-intuitive nature of Plaintiff’s assertions. Not only does he not have a good faith belief that the underlying employer conduct is unlawful, but he does not oppose the underlying discrimination. Indeed, he was the subject of the complaint.

Oh yeah, I forgot to mention that part. The employees asserted EEOC Charges based on the actions of the plaintiff. Yep.

Let’s get back to Judge Bissoon, shall we?

We cannot find any hints . . . of any purpose of protecting employees whose resistance to charges of discrimination made by their coworkers provokes the employer’s ire. . . Perverse and absurd statutory interpretations are not to be adopted in the name of literalism. 

I think that’s fancy judge speak for this.

I suppose it’s not that often that this fact pattern will surface in your workplace. But, if you change the facts a bit, and the plaintiff is fired after trying to help the employees who filed with the EEOC, the retaliation claim is not so absurd. Remember that courts endorse broad protections for retaliation, especially where the employee participates in a proceeding against an employer.

Indeed, that retaliation claim is a much a closer call.

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