Retaliation (again), Quirky Question # 136
Quirky Question # 136:
I know you’ve written a number of analyses of retaliation claims, but our company has a new twist to this subject. One of our employees filed a Charge of Discrimination with the Equal Employment Opportunity Commission, claiming sex discrimination. In her Charge, she identified several other employees, none of whom has ever complained about any unfair treatment. One of the employees identified in the Charge recently claimed that we retaliated against her. However, she had never even complained about any unfair treatment, let alone filed a Charge. We understand that we cannot take adverse action against someone who “participates” in an investigation or who “opposes” discrimination. But, this employee did neither. She was just listed as a knowledgeable person on a Charge. I presume that the anti-retaliation do not go this far. Do they?
Roy’s Analysis:
Like your company, courts continue to grapple with the scope of the anti-retaliation provisions contained within the federal and state anti-discrimination statutes. As you may know, however, those statutory provisions are written broadly. When combined with the fundamental purposes of the statutes – prohibiting discrimination and retaliation – courts often are inclined to intepret these provisions expansively.
For example, Title VII’s anti-retaliation provision states: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants . . . because [the employee/applicant] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter.” Sec. 2000e-3. As you reference in your question, this prohibition encompasses both an “opposition” and a “participation” component.
As you note, it does not appear that your employee who was listed as a potential “witness” in the Charge filed by her co-worker has done anything to “oppose” a discriminatory practice. Further, as you stated, she herself did not file a Charge of Discrimination, or even complain about any unfair treatment. Thus, it would appear on the facts you briefly recounted that your employee will not be able to avail herself of the “opposition” clause of the statute. [For a discussion of last year’s Supreme Court Crawford decision, which focused on the opposition clause issue, use the “View By Topic” tab on the upper-left-hand side of this page and scroll down to “Retaliation.” You will find the discussion of Crawford, along with the discussion of other retaliation contexts, in that section.]
Parsing through the other specific statutory proscriptions (“made a charge”, “testified,” or “assisted”) these provisions would not lend support to your employee that she has engaged in protected activity. The key question, therefore, is whether your employee can avail herself of the “participation” clause of the statute. As you can see from the material quoted above, that clause prohibits retaliation against a person who has “participated in any manner in an investigation, proceeding or hearing . . ..” (Emphasis added.)
Presumably, your employee will contend that by being named in her co-workers’ Charge of Discrimination, she “participated” in some manner in the investigation. Conversely, your company will presumably take the position that a passive reference to an individual in a Charge, without more, does not entitle the referenced employee to claim the protections of the anti-retaliation provision. Unfortunately for your company, as explained further below, your employee may have the more persuasive argument.
Before discussing the arguments your employee likely will advance, let me highlight a few of the factors that may strengthen or weaken your company’s position. Did your company know that this employee had been named as a witness in her co-workers’ Charge? Presumably, since the EEOC sends the Charge out to accused companies, at some point your company was (or will be) informed. If, however, the supposed adverse action (whatever it may have been) occurred before the information was provided by the EEOC to your company, your company’s position will be enhanced.
In addition, even if your company received the notification from the EEOC and was aware of the co-worker’s inclusion in the Charge, who within your company knew this fact? Often, the Charge of Discrimination is sent to the President or CEO of the affected company. From there, it typically is provided to the VP of Human Resources or some other employee with equivalent authority. If this information was not shared with the person your employee is accusing of retaliatory conduct, again your company’s position will be significantly enhanced.
The content of the Charge also may bear upon the issue of your company’s potential liability. Did the Charging Party characterize her co-worker as a “supportive” witness or a person who could “corroborate” her allegations? If so, did that cause anyone within your company any consternation? Did anyone speak with the identified employee to find out what she knew? Did anyone express any concerns about the fact that she had been listed in the Charge? Did anyone attempt to ascertain whether she had any concerns about discriminatory treatment, either toward herself or others? Did anyone at your Company express the sentiment that the Company hoped she would cooperate in defending against the Charge, or even worse, state or imply that she would suffer adverse consequences if she failed to assist the Company?
As you likely already have deduced, the identification of an employee on a Charge of Discrimination puts a company in somewhat of a quandry with respect to the issue of potential retaliation claims. In most instances, a company will want to systematically and thoroughly interview each of the individuals listed in the Charge. Yet, once those individuals have been interviewed, the employees will have to be treated carefully, especially if any of them are being subjected to any disciplinary action of any kind. Clearly, a person who has been interviewed as a result of having been named in a Charge will be deemed to have “participated” in an investigation and will protected by the participation clauses of statutory anti-retaliation provisions. And, if the employee has expressed any criticisms of the company, or accused it of discriminatory conduct, or contended that she too has suffered discrimination, the company will need to take particular care with regard to this employee if it wishes to avoid any claim of retaliatory conduct.
As you can see, there is a spectrum, reflecting the types of interaction your Company may have had with the employee identified in the Charge. At one end of the spectrum is: No Knowledge by the Decision-Makers; at the other end of the spectrum is Knowledge Coupled with Adverse Action. The closer your Company is to the former, the better; the closer you are to the latter, the more problematic.
Of course, the mere fact that somone may be listed as a knowledgeable individual on another employee’s Charge of Discrimination does not a retaliation case make. Your company would have to have taken some adverse action toward this employee after learning of her listing on the Charge – some negative change in the terms or conditions of her employment. The fact pattern described above does not address that issue at all, so I will not comment on this point other than to state that the mere fact that an employee has “opposed” a discriminatory practice or has “participated” in an investigation, proceeding or hearing does not mean the employee is forever after untouchable. A company may take appropriate disciplinary action against an employee, up to and including termination, if warranted and if not linked to the protected activity in which the employee engaged. For example, even if an employee provided inculpatory information in connection with a sexual harassment investigation, if that same employee brought a rocket propelled grenade to work the next day, he or she should be fired. I doubt that you would have much difficulty persuading the fact-finder that the discharge stemmed from the fact that the employee brought a weapon to work, and was not grounded upon the damning testimony. (On the other hand, if other employees previously had brought RPGs to work without consequence, your discharge decision would be more difficult to justify.)
A recent case out of the federal District Court in Arizona touched on some of the issues presented by your question. In EEOC v. Creative Networks LLC, No. 2:05-cv-03032 (D. Ariz. Jan. 15, 2010), the federal court grappled with the issue of whether the identification of an employee in a Charge of Discrimination, and the adverse conduct she claimed was then directed at her, was encompassed by either the opposition or participation clauses of the anti-discrimination statute. Although the Court found that the employee had not “opposed” any discriminatory conduct and therefore could not make out an opposition claim, the court found that she was protected by the “participation” clause, a conclusion that caused the Court to deny the defendant’s Motion for Summary Judgment.
As the Court noted, the EEOC argued that both that the “plain language” of Title VII’s retaliation provision broadly protects assistance or participation “in any manner” and that without protection, employers could intimidate witnesses identified in Charges of Discrimination, which could deter them from participating in investigations. The Court found these arguments persuasive.
As the District Judge observed, the Supreme Court had admonished: “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). [I don’t know whether the Supreme Court cited to Dr. Suess for this proposition, but if not, it should have. See, Horton Hatches An Egg.] Further, the Court stated that “the explicit language of the participation clause offers broad protection to Title VII claimants.” Although the precise issue presented in the Creative Networks case had not been addressed by the Ninth Circuit, the District Court emphasized that a number of circuit courts had given the anti-retaliation provision of Title VII an expansive interpretation, citing, Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997) (initiating complaint with EEOC counselor is protected activity);and, Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 174-75 (2d Cir. 2005) (employee named as witness in deposition but who never testifies engages in protected activity).
Moreover, as referenced above, the Creative Networks court analyzed the specific issue in the broader context of the statute as a whole and its overall purpose. Citing to last year’s Supreme Court’s Crawford decision, the court stressed, “prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others” if an employer could punish employees who reported discrimination without remedy. Adopting a variation of this analysis, the Creative Networks court concluded: “Without the protection of Title VII, witnesses named in EEOC charges could be intimidated into not testifying or supporting a co-worker’s discrimination claims. Title VII prosecutions would be chilled because witnesses would be afraid of retaliation by their employers.”
What then are the takeaways from this analysis?
First, if an employee is named as a witness in a Charge of Discrimination, the prudent course is to assume that he or she is protected by the “participation” clause of Title VII’s anti-retaliation provision.
Second, certainly once a company makes a decision to interview those identified in a Charge of Discrimination, the persons interviewed will have “participated” in the investigation.
Third, the individuals conducting the investigative interviews should be sure to stress that the interviewees will not be retaliated against in any way.
Fourth, if the interviewee provides testimony or other information suggesting that he or she is also a victim of discriminatory conduct, a separate investigation should be conducted into those allegations.
Fifth, particularly if the interviewee provides corroborating testimony relating to the allegations of the initial Charge or provides information identifying other types of discriminatory conduct directed at herself or others, the company needs to recognize that it is not “business as usual” with regard to any potential adverse actions directed at that employee. Such actions, particularly if they are in temporal proximity to the interview, will invariably lead to a retaliation claim.
Finally, even if an employee provides critical information about a company and its discriminatory and/or retaliatory conduct, that does not mean the employee is untouchable. If the employee engages in wrongful conduct, the company can take appropriate disciplinary action. But, ensure that the company’s response is based on the wrongful conduct and not the provision of critical testimony. Be prepared to explain clearly why the explanation for the adverse job action is not merely a pretext or cover-up for discriminatory or retaliatory conduct.
Associational Gender Discrimination, Quirky Question # 118
One of our male employees (call him Mr. X) recently complained that a supervisor at our company was sexually harassing Mr. X’s girlfriend, also one of our employees. We advised him that we would investigate. Apparently, however, our investigation was not moving sufficiently fast for him. When Mr. X encountered the supervisor in routine work settings, he was confrontational and unpleasant. We advised him he needed to tone it down and let our HR Department do its work, but that just seemed to anger him more. The supervisor who had been accused of harassment informed us that he was getting very nervous about Mr. X’s antagonistic conduct. Based on this escalating situation, we terminated Mr. X’s employment.
He now has filed a charge for “associated discrimination” and retaliation. Say what? Can a significant other of our employees claim discrimination because of the way our company allegedly treats their girlfriend?
Roy’s Analysis:
Your question implicates a number of interesting issues. First, are courts recognizing “associational discrimination” claims? Second, have they done so in the context of gender discrimination claims? Third, even if an associational discrimination claim were not recognized, would your employee have any other recourse? Finally, should your company accept otherwise problematic behavior from the employee simply because he has raised discrimination issues with management? Let’s examine each of these issues sequentially.
As I have discussed in other Blog Postings, courts have recognized associational discrimination claims. (For other analyses of this subject, use the “View by Topic” bar and scroll down to Associational Discrimination and Inter-racial Marriage.) Typically, these claims have arisen in the contexts of family relationships (spouses, parents/children, or other familial relationships). They also have generally been limited to contexts involving inter-racial associations, e.g., inter-racial marriage, or close friendships between members of different races.
The fact pattern you described, where one employee believes that his discharge was caused by his objections to the alleged sexual harassment of his girlfriend, also one of your employees, is unusual. Recently, however, the United States District Court for the Eastern District of Pennsylvania, examined a similar factual pattern in the case of Stezzi v. Aramark Sports, LLC, No. 07-5121 (July 30, 2009). In Stezzi, the plaintiff brought claims under both Title VII and the Pennsylvania Human Rights Act, contending that his discharge was caused by his association with his girlfriend/co-worker who allegedly was a victim of sexual harassment. The plaintiff complained to management about the way in which his girlfriend had been treated. Thereafter, he claimed that he too was treated unfairly by the same person who had been harassing his girlfriend.
Stezzi brought claims for associational discrimination and retaliation. These claims were presented to the District Court on summary judgment. As to the associational discrimination claim, the federal court noted that although courts have recognized Title VII claims for associational discrimination, “such claims are typically predicated upon discrimination against a plaintiff because of race.” The court further pointed out that “there is currently no precedential support to extend a Title VII claim to [gender-based claims].” The court observed that the Third Circuit also had rejected an associational discrimination claim based on gender.
While the Stezzi court was unwilling to extend associational discrimination claims to the context of gender based discrimination, the court did not grant the defendant company’s summary judgment motion on the plaintiff’s retaliation claim. This analysis bears upon the third issue referenced above – would your employee have any claims besides his associational discrimination claim? As you noted in your fact description, your male employee reported the alleged sexual harassment of his girlfriend. As you stated, he apparently concluded that the “investigation was not moving sufficiently fast for him.”
(Digressing on that point for a moment, you do need to move expeditiously once you have received a complaint of sexual harassment. Courts have little tolerance for companies that fail to investigate claims of harassment or that fail to take appropriate remedial action when warranted. You do not describe in your question how much time your company took with its investigation, whether you determined that your female employee had, in fact, been harassed, or whether disciplinary action was warranted. But, I emphasize the obvious to state that you do need to be sensitive to the issues surrounding a harassment complaint and the speed with which you initiate and complete your investigation.)
Returning to the issue of retaliation, it is possible that your male employee, while unlikely to persuade a court to recognize an associational discrimination claim based upon his gender, may well have a retaliation claim that could survive a motion for summary judgment. He formally complained about the way a manager was treating one of your female employees and the company terminated his employment soon thereafter.
This leads to the fourth issue presented by your fact pattern – what conduct did your employee engage in that led to his discharge? You suggested that your employee was “confrontational” and “unpleasant” and that when you advised him that he needed to modify his behavior, that only “angered him more.” As you described, the supervisor who allegedly engaged in the initial harassment informed your company that he was becoming nervous about this employee’s behavior. This fact pattern implicates two important issues.
First, simply because there is temporal proximity between a complaint about discrimination and a subsequent discharge does not mean there is a causal relationship between these two events. Your company does not have to accept otherwise unacceptable behavior merely because the employee engaging in the unacceptable conduct has made a claim of discrimination. You will have to demonstrate to the factfinder (whether judge or jury) that your disciplinary actions were based on intervening events, but if you document the problems you are encountering, and counsel the employee regarding the ramifications of continued misconduct, you should not be reticent to discipline your employee (including discharge if necessary), if the problematic behaviors continue. In your fact pattern, it appears that this was your conclusion. Now, you will need to explain that decision persuasively to others.
Second, your observation that the alleged harasser was becoming “nervous” about the reactions and behavior of the employee who complained suggests also raises a red flag. Unfortunately, in contexts like this, there is always an under-current risk of workplace violence. You do not want to ignore this possibility, even if the likelihood is slim. Ensure that you explore the relevant issues so you can realistically evaluate this risk. The bottom line is that absent a judge who is willing to expand the associational discrimination analyses into a new area, you likely need not worry about a claim for gender-based associational discrimination. But, once a formal report of discrimination, including sexual harassment, has been made, the complainant may be able to assert claims of retaliation if he later suffers adverse job consequences. Move cautiously once a formal (or informal) complaint has been made, but don’t be reluctant to take appropriate disciplianary action if intervening events warrant it.
Managing the Chronic Complainer, Quirky Question # 117
We have an employee who has become a “chronic” complainer. She initially complained to her manager that her annual bonus was incorrectly calculated and that she believed the alleged error was because of her sex and/or age. The manager referred the complaint to Human Resources, which thoroughly reviewed the bonus calculations for that department and concluded no error or discrimination occurred. The employee’s manager and a Human Resources representative met with her to explain how her bonus had been calculated. The employee was not happy that her bonus would not be changed, but she could not explain why she believed the company’s bonus calculation was wrong.
It has been six months since that meeting, and things have really gotten out of hand. The employee complains that everything and anything is sex or age discrimination. She has begun to voice her complaints at team meetings, which is distracting and is starting to have a negative effect on team morale. She also sends long e-mails to her manager and Human Resources, listing a litany of issues and demanding an immediate response. We have done our best to give this employee the benefit of the doubt – Human Resources has met with her and her manager on numerous occasions, but, so far, there has been no merit to her complaints. Needless to say, she is wasting everyone’s time and it has gotten to the point that she seems more focused on complaining than getting her job done. Before this, she was a good performer. At what point can we say “enough is enough”? Can we discipline this employee for making too many baseless and distracting complaints?
[Readers: Quirky Question # 117 was posed to my colleague, Nicole Haaning. Her analysis is set forth below. If you have any questions about Nicole's analysis, do not be reticent to contact her. Nicole can be reached at 612.492.6635 or at haaning.nicole@dorsey.com. Additional information regarding Nicole is available at: http://www.dorsey.com/haaning_nicole/.
If you are interested in additional analyses of retaliation issues, use the "View By Topic" bar above the Employment Trivia Question to the left. Regards, Roy]
Nicole’s Analysis:
Whenever an employee has complained about discrimination, harassment, retaliation, or other illegal or improper conduct, an employer should proceed cautiously before taking any disciplinary or other adverse actions against the employee.
Various statutes – including state and federal anti-discrimination statutes – prohibit retaliation against employees who have engaged in protected activity by, among other things, making a complaint. That said, courts have frequently held that an employee’s “protected activity” may be so disruptive, unreasonable, or inappropriate that it does not warrant protection. For example, courts have held that the following behaviors are not protected activity:
• Copying and/or accessing confidential documents or information to support an administrative discrimination charge. Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998) (employee did not engage in protected activity when he copied confidential documents to support his discrimination claim); Comiskey v. Auto. Indus. Action Group, 40 F.Supp.2d 877, 899 (E. D. Mich. 1999) (employer had legitimate reason to fire employee who accessed confidential computer files to gather information in support of his wage discrimination claim).
• Yelling at a manager for failing to provide a reasonable accommodation. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir. 1999) (court upheld deaf plaintiff’s termination for insubordination after he yelled at a company owner for refusing to buy a TDD that would allow him to make business and personal calls).
• Neglecting job duties in order to pursue complaint. See EEOC v Shoney’s, Inc., 536 F. Supp. 875 (N. D. Ala. 1982) (employer had legitimate reason to fire employee who neglected his job for three days in order to pursue an EEOC complaint).
• “Harassing” coworkers to join or support discrimination complaint. Jackson v. St. Joseph State Hospital, 840 F.2d 1387, 1390 (8th Cir. 1988) (harassing coworker to sign affidavit in support of EEOC complaint was “bizarre,” “objectionable,” and legitimate reason for termination).
• Refusing to perform job duties. Hazel v. U.S. Postmaster General, 7 F.3d 1, 4 (1st Cir. 1993) (plaintiff believed he was given undesirable job assignment in retaliation for investigating sexual harassment complaints and refused to report to his new assignment; the court upheld his discharge for insubordination, noting, “the right to oppose discrimination is not a right to refuse to work on account of discrimination”).
A few courts have also grappled with the issue of the “chronic complainer” and have held, under certain circumstances, that making too many complaints itself can be grounds for termination or other adverse employment actions. Two cases are highlighted below where courts granted summary judgment to employers that took adverse actions against an employee for making too many complaints.
In the first case, Webb v. Xcel Energy, Court File No. EM 04-013868, slip op. (Minn. St. Ct. Jan. 18, 2006), Dorsey won summary judgment on a Minnesota Human Rights Act retaliation claim where the plaintiff was terminated for several reasons, including that she repeatedly made baseless complaints against a coworker.
For reasons no one ever really understood, the plaintiff – a woman – had it out for a contract employee, another woman, who worked on the same floor, but in another department. The plaintiff filed an internal sexual harassment complaint against the contract employee. The company investigated but found no merit to her allegations. The company reported the results of its investigation to the plaintiff, but she wasn’t satisfied. (Frankly, it seemed that nothing short of getting the other woman fired would have satisfied this employee.)
She began to inundate Human Resources with “complaints” about the contract employee, but the “complaints” were simply sightings of the contract employee in and around the building where both of them worked – for example, that she had seen the contract employee in the break room, in the restroom, when she was getting out of the elevator, etc. Human Resources met several times with the employee to explain that she was likely to cross paths with the contract employee during the work day. Even so, the company offered several measures to limit her interactions with the contract employee. The plaintiff refused all of them.
Things came to a head, when, after months of complaints, the plaintiff called up the contract employee’s manager and yelled at the manager because she had seen the contract employee in the corridor, talking to another employee. The company terminated the plaintiff’s employment and, in a letter detailing the reasons for her termination, included (among other reasons) the fact that she persisted in making baseless complaints against the contract employee.
The trial court granted defendant’s motion for summary judgment, finding that the company terminated the plaintiff’s employment for legitimate, non-retaliatory reasons. The Court of Appeals affirmed the trial court’s grant of summary judgment. Webb v. Xcel Energy, 2007 Minn. App. Unpub. 453 (Minn. Ct. App. May 15, 2007).
In the second case, Rollins v. State of Florida Dep’t of Law Enforcement, 868 F.2d 397 (11th Cir. 1989), the Plaintiff alleged she was denied promotions because of her race. At summary judgment, the employer presented, as the sole non-discriminatory reason for denying the plaintiff’s requests for promotion that she had “disrupted the workforce by repeatedly making spurious claims of racially disparate treatment in an extremely hostile and antagonistic manner.” On appeal, the plaintiff argued that this reason was retaliatory.
The 11th Circuit upheld the trial court’s order granting summary judgment in the employer’s favor, holding that “to qualify for the protection of [Title VII] the manner in which an employee expresses her opposition to an allegedly discriminatory employment practice must be reasonable.” The court based its finding that the plaintiff had not raised her complaints in a reasonable manner on the following facts:
• She refused to follow the avenues prescribed for bringing complaints – among other things, she would write allegations of discrimination on her weekly time sheets.
• The Court also found that the “sheer number and frequency of Rollins’ complaints, most of which were plainly spurious, was overwhelming.”
• Her supervisor testified that “he spent more time addressing Rollins’ repeated complaints of racially discriminatory practices than those raised by all of his other employees combined.”
• He also testified that her “constant complaining and unsupported allegations had a damaging effect on morale within his unit.”
• The court provided one example of a complaint it found to be especially spurious: some employees organized an outside of work “beer bash” to watch an “important” Florida State University football game; the plaintiff “vehemently protested” the social event, arguing that equal treatment was not accorded Florida A&M University, a predominantly black university.
• The Court last found that the plaintiff raised her complaints in an “antagonistic and insubordinate” manner. On one occasion, she called her supervisor a “fool” and told him “to look up the definition” because it was “accurate.”
It is important to note what both the Webb and Rollins cases have in common. First, both companies originally gave the plaintiff the benefit of the doubt, conducting thorough investigations of their complaints before reaching the conclusion that the complaints were baseless. Second, the employees made complaints in inappropriate, disrespectful, or disruptive ways.
In your situation, it appears the time is right to have a very frank conversation with the employee, explaining that you have repeatedly listened to and addressed her concerns but that she has not provided any information suggesting that she has been discriminated against. Share your concerns that a lot of time has been spent by her manager and Human Resources responding to her concerns and that it appears she has lost focus on her job. While you should not forbid her from raising concerns, encourage her to think carefully before doing so. You should request that she raise any concerns privately with her manager or Human Resources, explaining that team meetings are not the appropriate forum to raise such issues. If the employee persists in her behavior, disciplinary action, up to and including termination, may be appropriate to address the problem.
Reporting Charge to Another Company, Quirky Question # 105
Quirky Question # 105:
I am a senior manager with a manufacturing company based here in Minnesota. Several months ago, we received a job application for an open position from an employee of a vendor with whom we work quite closely. We did not select that person for the open position and he filed a Charge of age discrimination against our company with the EEOC.
A few weeks after the Charge was filed, I happened to get a call from a friend of mine at this vendor. I mentioned that their employee had filed a Charge against us. The next thing I knew, the vendor fired the employee. Then, the employee filed another Charge against our company with the EEOC. How can this be?
Roy’s Analysis:
Your question is an excellent one and reflects conduct I am convinced occurs regularly. Although I don’t have empirical evidence data to support my next observation, I suspect employers commonly respond to inquiries from other companies about an ex-employee who is suing them with a simple, unembellished factual observation to the effect that the ex-employee is pursuing a lawsuit against the company. If the employee has filed a Charge of Discrimination pursuant to the Minnesota Human Rights Act, that factual statement by the employer may be problematic.
Your question involves an even more attenuated factual scenario – the individual who has sued you never was your employee (only an applicant for the job). Moreover, as you pointed out, he was gainfully employed by one of your vendors at the time he sought a job with your company. In an unrelated conversation with your vendor, you made the seemingly innocuous factual observation that the vendor’s employee had filed a Charge of Discrimination against you. You did not ask the vendor to fire its employee or ask for any other punitive action to be taken against him. Nevertheless, the vendor fired the employee and he now has brought a new Charge against your company, this time alleging retaliation.
Although there are many additional facts that need to be developed to flesh out this fact pattern, on its face, your seemingly innocent observation would appear to violate the Minnesota Human Rights Act (MHRA).
The law of retaliation, whether under the federal statutory scheme or (in Minnesota) the parallel MHRA, is based on a fairly simple principle – employers are precluded from taking actions against employees because they have exercised their statutorily protected rights. A corollary to that point is that employers are precluded from taking actions that would likely deter those employees, or other employees, from exercising their statutory rights under the anti-discrimination statutes.
Let’s start with an obvious example: if you fired an employee because that employee accused your company of discriminatory conduct, you would be exposing your company to a legitimate retaliation claim. Indeed, I routinely counsel my clients that they need to be particularly careful not to behave differently towards an employee who has accused them of discrimination, lest they convert an otherwise infirm lawsuit based on imagined discriminatory conduct, into a legitimate lawsuit based on actual retaliatory conduct.
Note my use of the word “because” in the example I used above. If you discharged an employee who had accused your company of discrimination and the basis of your decision was entirely unrelated to the allegations made by the employee, you would not have engaged in retaliation. For example, let’s assume an employee filed a Charge of Discrimination claiming you had discriminated against her on the basis of her sex. If you subsequently learned that the employee had embezzled funds from your company, you certainly are not constrained from terminating this employee because of her acts of embezzlement. She later may try to claim that your real motivation in firing her was her Charge of Discrimination, but your company will have a compelling defense to that retaliation claim.
The question you present, therefore, can be considered in this framework – is it retaliatory for you to reveal that an employee, or in your case, an applicant, has filed a lawsuit alleging discrimination? Is the fact that an employee’s lawsuit might be disclosed to a prospective employer or to his/her existing employer likely to deter that person from pursuing his/her claims in the first instance? I have my opinion on that subject, as well as an employer’s entitlement to share truthful information of this kind. In this instance, however, my opinion is NOT aligned with the collective wisdom of the Minnesota legislature.
The Minnesota Human Rights Act contains a provision addressing this precise context. Under its broad anti-retaliation provision, the MHRA states:
“It is an unfair discriminatory practice for any individual who participated in the alleged discrimination as a[n] . . . employer . . . or employee or agent thereof to intentionally engage in any reprisal against any person because that person:
(1) opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter; or
(2) associated with a person or group of persons who are disabled or who are of different race, color, creed, religion, sexual orientation, or national origin.”
A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment. It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in the activities listed in clause (1) or (2): refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1) or (2).” See MHRA, § 363A.15 (Reprisals) (Emphasis added.)
In short, the MHRA specifically states that it is retaliatory to inform another employer that an individual has “filed a charge” or engaged in other types of protected conduct. By advising your vendor that its now-ex-employee had filed a Charge of Age Discrimination against your company, you violated the statute. Moreover, if your vendor terminated its employee because of your report that he had filed a Charge of Age Discrimination, your vendor also would have engaged in retaliatory conduct.
Even if you have violated the statute, however, you need not despair, at least until you gather more facts. You may be able to establish that the Charging Party did not suffer any damages that were caused by the observations you made to your vendor. For example, as suggested in the example above, there may not have been any causal nexus between your observation to your vendor and its decision to discharge its employee. The employee may have been fired for embezzlement, for theft, for bringing a weapon to work, for sexual harassment of another employee, for poor performance, or for any of a thousand, independent and wholly legitimate reasons. Further, your vendor may be able to advance compelling information that its termination decision with regard to this employee was made well in advance of your observation that he had filed a Charge of Discrimination against your company. Your question does not address any of these related facts, so admittedly, I am speculating. But, it will be important for you to explore carefully with your vendor both the reasons why the vendor terminated its employee, and the timing of its discharge decision.
Of course, if your vendor relates to you that it terminated its employee because it was angry that one of its employees was foolhardy enough to sue a key customer for discrimination and that the employee otherwise was performing in an exemplary fashion, you’ve got a problem. In this factual context, you may want to reassure your vendor that the fact that one of its employees sued your firm will not have any adverse consequences for the business relationship between your two companies. If you could persuade the vendor to rehire the employee, even better. Then, even if your company is found to have violated the MHRA, the Charging Party’s damages, at least with respect to the retaliation claim, will be negligible. You still will have to address both the liability and damages issues associated with your decision not to hire this individual, but presumably you had legitimate, non-discriminatory reasons for that decision.
As alluded to above, I question the appropriateness of the statutory provision in the MHRA that prevents an employer from revealing truthful, public information to another company. Moreover, there are a variety of contexts where this information already may be in the public domain in a manner that discloses this information to another employer. For example, the employee him- or herself may have informed the prospective employer that he/she had filed suit against his/her former employer. Similarly, there may have been a news article about the lawsuit. The statutory provision does not address how this public information affects a prior employer’s obligations to refrain from disclosing this information.
Another potentially problematic issue is that enforcement of this statutory prohibition is impractical. Litigants pursuing claims of discrimination often allege other statutory and/or common law claims in their lawsuits. An employer is not prohibited from revealing to an ex-employee’s prospective employer that the ex-employee has sued for wrongful discharge, for breach of contract, for a violation of the Whistle-blower statute, or for myriad other reasons, so long as the information conveyed is factual and truthful. If one of the claims alleged by the employee is discrimination under the MHRA, is an employer precluded from making any comment about the litigation? The statute would appear to prohibit this disclosure. Could an employer comment that an ex-employee had sued for intentional infliction of emotional distress, or negligent hiring, or other common law claims, so long as no reference was made to the discrimination claim? Or, if allegations of discriminatory conduct are part of the lawsuit, are all comments of any kind prohibited? The statute does not address this issue.
Finally, consider once again the hypothetical at the outset of this analysis. Let’s assume that an employer fired an employee for felonious conduct, such as embezzling funds or assaulting another employee. Let’s also assume that notwithstanding the employer’s legitimate reasons for discharging the employee, the employee filed a Charge claiming that the employer’s real motivation for the discharge was discriminatory animus. If that ex-employee applied for employment elsewhere and the first employer received a call from the prospective employer, I believe that it would be legitimate to reveal that: a) the employer had a sound basis for the discharge; and b) despite that fact, the employee filed a frivolous claim of discrimination. Yet, the latter part of the disclosure would be prohibited by the reprisal provision of the Minnesota Human Rights Act. This does not make much sense to me. But, in Minnesota at least, employers would be prudent to refrain from making any comment at all to another employer regarding a lawsuit in which the plaintiff has brought a claim under the MHRA.
Accommodating Disabled Employee With Offensive Habit, Quirky Question # 100
Quirky Question # 100:
We have an employee who suffers from Post Traumatic Stress Disorder, is under the care of a psychiatrist through the Veterans Administration and takes medication for this condition. He also chews tobacco at work. There have been a number of employee complaints about the disgusting nature of the tobacco habit. The employee claims that his psychiatrist feels that chewing tobacco helps him to reduce the stress level at work and we should allow him to continue.
We do not have a policy regarding the use of tobacco products at work, except for a designated smoking area away from the building entrance per a state law. We would like to institute a new policy addressing the entire issue of tobacco use. Could this be viewed as retaliatory?
Roy’s Analysis:
Quirky Question # 100 was recently submitted by one of the Blog’s readers. So, my first observation is simply an expression of thanks to the person who provided this inquiry and encouragement to the rest of you to send in questions that reflect issues confronted by your company or that simply intrigue you.
The starting point for the legal analysis of this question is the Americans with Disabilities Act (ADA). As with most ADA issues, the preliminary inquiry is whether the employee is disabled, i.e., does the person have a physical or mental impairment that substantially limits one or more major life activities; (there are two other facets of the disability definition that do not appear applicable to this fact pattern – record of impairment or regarded as having an impairment). A “major life activity” includes, by way of example, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
Here, as described in the question, the employee suffers from Post Traumatic Stress Disorder (PTSD), is taking prescription medication, and is under the care of a Veterans Administration psychiatrist. Despite the convergence of these three variables, it is not clear to me that this employee is necessarily disabled. To make a more definitive analysis, I would like to know the precipating cause of his PTSD, the medication he is taking and why, as well as the frequency and dosage. I also would want to know what his condition would be in the absence of the prescription medication. Would he be functional? Would he be able to care for himself? To work? Although more facts are needed to evaluate more carefully whether this employee is a person with a disability, for the purposes of this analysis, I will assume that your employee could establish that he met the statutory definition of a disabled employee.
It also would appear that your employee is able to perform the essential functions of his job, with or without a reasonable accommodation, another component of the analysis under the ADA. You have not included any facts suggesting that your employee is unable to handle the responsibilities of the job or that his performance is deficient in some other way.
Arguably, however, his use of chewing tobacco is critical to his ability to perform at work. His psychiatrist, at least, apparently feels that his use of chewing tobacco has a beneficial effect and enables the employee to reduce his PTSD-caused stress. Again, I would like to know more about the psychiatrist’s diagnosis. I also would like to know more about the risks to your employee (if any) associated with the cessation of his chewing tobacco. Similarly, it would help define the problem to know how often he chews (does he keep a wad of tabacco in his mouth all day), where he chews, etc.
Although these facts would inform the analysis further, it appears from the question that your employee chews enough tobacco that other employees have noticed and are offended by his habit. Let’s assume that allowing this employee to chew tabacco is the “reasonable accommodation” needed by your employee to enable him to be fully functional at work. The next issue that needs to be addressed, therefore, is whether your company can accommodate your employee’s conduct without suffering an undue hardship.
At first blush, it would appear that the answer to this inquiry is affirmative. For one thing, your company has tolerated the conduct for a period of time. A plaintiff’s lawyer could make the straightforward argument that the company’s acceptance of this habit (with its salutary effects for the employee) itself illustrates that the company is not experiencing an undue hardship by allowing him to continue to chew. Moreover, it would not seem as though there are significant costs associated with allowing your employee to chew tobacco.
But, as you note, his habit is grossing out his co-workers. In my view, the impact that one employee’s conduct has on co-workers should not be dismissed cavalierly. Certainly, with respect to some behaviors (I’ll leave those to your imagination), the habits or conduct could be sufficiently disruptive of the workplace that it created a significant morale problem or caused unnecessary tension in the work environment.
Your employee’s tobacco-chewing habit suggests to me that you should explore further whether the interests of the co-workers can be addressed. There may be a number of practical solutions that would minimize, if not entirely eliminate, the problems you describe. For example, consider prohibiting the use of chewing tobacco in certain areas – the cafeteria and other common areas (such as an employee lounge) come to mind. Employees understandably could find it distasteful if they are watching someone chew and spit tobacco while they are eating. Similarly, the employee could be prohibited from chewing tobacco during meetings or other functions involving multiple employees. Another practical solution worth exploring is whether the behavior could be confined to certain times of the day (e.g., before 9:00 a.m., during the lunch hour if away from your company’s facility, after 4:00 p.m.). This suggestion may or may not be practical (depending on the chewing employee’s needs), but reducing the amount of time the other employees have to observe this behavior may have some beneficial effects. Another way of potentially minimizing the offensiveness of this conduct to others would be to ask the employee to work in an office or cubicle where his conduct would be less visible to his co-workers. Especially if this solution was viable (it may not be), this simple step may largely solve the problem your company is confronting.
Finally, you inquire whether your company could simply adopt a policy banning the use of all tobacco products on company premises and, if such a policy were adopted, whether this action could be construed as retaliatory. In my view, adopting this policy would have few positive effects with respect to your company’s interaction with this particular employee. As you note, he certainly would be able to point out that the policy was solely directed at his conduct as there were no other employees chewing tobacco on your premises. Moreover, he could engage in the interactive process with regard to a disability accommodation and request that the company not enforce the policy as to him. To the extent your company rejected this request, there are at least three potential consequences. First, he could cease using these tobacco products and continue to function effectively as an employee. Unfortunately, this scenario seems unlikely, based on his pyschiatrist’s diagnosis. Second, he could abide by the policy, cease using tobacco and become increasingly stressed out to the point where his work performance was adversely affected. If this scenario unfolded, you would have a difficult decision as to how your company would address these performance deficiencies. Third, he could refuse to abide by the policy. If your company discharged him at that juncture, he could assert both that the company had failed to reasonably accommodate him, which it have easily done without experiencing an undue hardship, and that the company adopted a policy in retaliation for his assertion of his rights under the ADA. Given that his PTSD apparently was caused by his military service, I would be uncomfortable with the atmospherics of that fact pattern.
Although adoption of a “no tobacco products” policy would not be of much use as to this employee, that would not deter me from adopting the policy with regard to the remainder of your workforce. You do not want to have to confront this issue again, especially for an employee who has no disability whatsoever but simply likes to chew tobacco, much to the consternation of his co-workers.
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