This week, I am on vacation. The Supreme Court didn’t get my memo. Fine. But, I’m not putting down my beer to write this post. So, you get a one-handed rundown of the two employment-law decisions the court issued yesterday.
Pardon my typos after the jump…
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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?
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%).
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.
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:
Not cool.Jokes about forking repo’s in a sexual way and “big” dongles.Right behind me #pycon twitter.com/adriarichards/…
— Adria Richards (@adriarichards) March 17, 2013
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.
Hey @mundanematt, it’s clear from the last 24 hours you’re a bully.@sendgrid supports me.Stop trolling.
— Adria Richards (@adriarichards) March 20, 2013
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…
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…
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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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…
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.
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.
The Employer Handbook Blog