Monday, February 2, 2015

Protected Conduct vs. Protected Conduct?

New ImageThe Seventh Circuit just decided a Title VII retaliation case that could be viewed as a clash of two statute's views of protected conduct. Greengrass v. International Monetary Systems involved a retaliation claim, with the retaliation being the defendant employer's listing the plaintiff's EEOC charge, complete with her name, as the adverse action.

The Seventh Circuit had no trouble finding plaintiff's protected conduct (filing a charge with the EEOC) or the employer's adverse action (listing her by name in its 10Q forms under "Legal Proceedings" while describing it as meritless).  On the latter issue, the court stressed that plaintiff claimed that a recruiter told her the filing made her unemployable and she also alleged that a Google search of her name drew multiple hits. 

Plus there was considerable evidence of pretext - including the employer's inconsistent treatment of reporting litigation against it.  In earlier filings, it did not include litigants' names; then it did; then it didn't. Accordingly, a reasonable jury could conclude that its naming plaintiff was in response to advice about compliance with SEC regulations.

But what about the possibility that the employer was required by the SEC to name the plaintiff? After all, if it were, compulsion of law would seem to render any harm to the plaintiff simply a consequence of compliance. That could be viewed as either a kind of privilege or negating any employer intent to discriminate. At any rate, I'm informed by someone who knows that the rule is that a company needs to name the principal parties to material legal proceedings. Presumably, the question then would be whether the company so determined in good faith.   (I'm told that the fact that a firm simultaneously labels a claim as  "meritless" doesn't necessarily negate materiality. Go figure).  

So what should an employer do?  Passing on materiality in individual cases seems fraught after the 7th Circuit's decision, which suggests that maybe employers would be wise to name all litigants all the time. Not a happy result for employees, and one that leads me to wonder if naming all litigants might run afoul of the disparate impact theory -- assuming it applies in retaliation cases, which may be up for grabs in light of recent developments.  

 CAS

H/t to Tim Glynn, Steve Willborn. 

https://lawprofessors.typepad.com/laborprof_blog/2015/02/protected-conduct-vs-protected-conduct.html

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