Friday, August 9, 2013

Taking Civility Too Far?


When I first started writing on retaliation under Title VII, I described the protection offered by the "participation" clause of section 704(a) as “absolute” as compared to the balancing the courts undertook for "opposition" conduct. Over the years in response to court decisions eroding participation protection, I qualified this somewhat, but a recent Seventh Circuit decision threatens to largely obliterate any distinction.

A little background. One of the first “participation” cases, Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969), found actionable retaliation when a worker was fired for filing an allegedly false and malicious charge with the EEOC — namely, that the employer had bought off an EEOC investigator. The court  wrote:

There can be no doubt about the purpose of §704(a). In unmistakable language it is to
protect the employee who utilizes the tools provided by Congress to protect his rights.
The Act will be frustrated if the employer may unilaterally determine the truth or falsity
of charges and take independent action.

And the Supreme Court impliedly confirmed that there were different standards for the two clauses (at least in some respects) in Clark County School District v. Breeden 532 U.S. 268 (2001). Although the Court found plaintiff’s opposition conduct (her internal complaints) unprotected because she could not have reasonably believed the conduct she challenged was illegal, it went on to consider whether she had a claim under the participation clause for her  filing of charges with the state agency and the EEOC. The clear message was that participation was not limited to reasonably-based claims.

Recently, however, some courts have been more willing to find certain participation conduct unprotected. See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 745 (7th Cir. 2010) (participation in an investigation of employment discrimination “doesn’t insulate an employee from being discharged  for conduct that, if it occurred outside an investigation, would warrant termination. This includes making frivolous accusations, or accusations grounded in prejudice.”), and Benes v. A.B. Data, Ltd., building on Hatmaker, only adds to the problem.

Admittedly, the facts were unusual. Plaintiff charged the employer with discrimination, and the EEOC arranged mediation. As Judge Easterbrook described the process and how it played out in the case itself:

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.

Not the most civilized conduct, but not unheard of in mediation, where emotions often run high. Since the objectionable conduct occurred in the context of an EEOC proceeding, Benes sued for retaliation, abandoning his original claim of sex discrimination. 

Although the discharge was clearly in response to plaintiff's conduct in the mediation, the Seventh Circuit held against the plaintiff. Benes was fired not for participating per se but for misconduct while participating. Just as Benes could be fired for punching or shooting the employer’s representative, so too he could be fired for lesser misconduct. Indeed, and more radically, the court seemed to suggest that any breach of the “structure established by the mediator” would justify employer discipline.

Judge Easterbrook then offered an independent reason why plaintiff must lose: Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006), held that Title VII doesn’t forbid all retaliation but only that that would dissuade a reasonable worker from making or supporting a charge of discrimination. “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.”

All of this seems highly problematic  The conduct was objectionable, but not "egregious," despite the court's characterization. Voices are raised and tempers flare in mediations across the country. And it's doubtful this was the first time an offeree told an offeror to shove it. Easterbrook did seem to think that the employer couldn't fire plaintiff for incivility unless it would have fired any employee for comparable conduct -- but he essentially put on the plaintiff the burden of showing that the company would not have fired an employee "who barged into his superior's office in violation of instructions and said what Benes said."  That's not so clear to me -- at least in a lot of workplace settings.  And it's certainly very convenient to fire someone who's raising claims of discrimination, which suggests more breathing room is needed when an employee is participating in an EEOC investigation (or EEOC-encouraged mediation) that the Seventh Circuit would allow.

Finally, the extension of Burlington Northern to create a kind of civility code seems especially problematic since there's no reason to believe that the code is limited to participation conduct. In opposing what is (by definition) reasonably believed to be discrimination (since otherwise opposition is not protected at all), it's scarcely surprising that etiquette will sometimes go by the wayside.  If a breach of Ms. Manners protocols takes a worker out from under the protection of section 704(a), without regard to "disruption" or, indeed, any balancing at all, the "protected conduct" umbrella is very small indeed. 

Hopefully, other courts will be tolerate less civility than Judge Easterbrook, and accept the reality that not all disputes are conducted in the stately minuet the Judge seems to anticipate.


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Great discussion. I think the takeaway here is that you should handcuff yourself to your client during mediations in order to keep their (sometimes quite understandable) impulse to go berserk in check.

Aside from ethics violations, sanctions, and the like, I wonder what happens if the lawyer goes in and tells the employer to kiss his/her ass and to fire his/her client.

Posted by: Craig Hensel | Aug 9, 2013 6:36:49 AM

I'm sure Easterbrook would find a reasonable employee not likely to be dissuaded from pursuing charges of discrimination by the risk of being fired for hiring a hot-headed lawyer!


Posted by: cas | Aug 9, 2013 12:48:08 PM

This is obviously wrong. Protection under Title VII for protected activity should be AT LEAST coextensive with protection under Atlantic Steel for protected concerted activity.

(For those not familiar, Atlantic Steel is a balancing test which looks to 1. the place of the conversation, 2. the content of the conversation, 3. the words used by the employee, and 4. whether the outburst was provoked by an unfair employment practice. It is very pro-employee. If you are a management attorney, you do NOT want to end up in a situation where you have to justify firing someone under this test-- it's not impossible, but it's unlikely.)

I mean, if you tried to fire a union rep for saying "You can take your proposal and shove it up your ass and fire me and I'll see you in court" in a collective bargaining negotiation, I'm pretty sure the NLRB judge would literally laugh you out of the hearing.

Posted by: Anon | Aug 10, 2013 5:01:33 AM

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