Retaliation

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Two Guys Walk into a Wine Bar… Not a Joke as Another Court Recognizes Claim for Harassment Based on Sexual OrientationI have told clients for years that they ignore claims based on sexual orientation at their peril, and another court is backing me up. An Arizona federal district court just ordered a wine bar to pay real money ($100,000) to two servers based on claims about sexual orientation harassment and retaliation.

Curiously, this was a default judgment, so we have no idea what the employer’s side of this story is. With that caveat, two servers, Wyatt Lupton and Jared Bahnick, filed charges with the EEOC claiming that 5th & Wine allowed its management and employees to harass them because their actual or perceived sexual orientation. According to Lupton, he was fired after he said he planned on taking legal action. The EEOC found cause and ultimately filed a lawsuit on their behalf. The company did not answer, and the EEOC obtained a default judgment—money for Lupton and Bahnick, as well as injunctive relief.

Regardless of what actually happened at this wine bar, employers should be careful when confronted with claims of discrimination or harassment based on sexual orientation or transgender status. Even though Congress has not added these as protected categories under Title VII, many courts are treating them as covered. In light of that trend, cautious employers should consider the following:

  • If an employee reports that he or she is being harassed because of sexual orientation or transgender status, treat it like you would any other harassment complaint.
  • Consider revising EEO and harassment policies to explicitly include sexual orientation and transgender status as protected categories.
  • Make sure supervisors and managers understand that ignoring these issues could land the company in court.

Employers beware: An employee does not have to use “magic words” to complain about discrimination for it to lay the basis for a retaliation claim. The Sixth Circuit made this point in a unanimous opinion in the case of Mumm v. Charter Township of Superior.

Sixth Circuit to Employers: No ‘Magic Words’ Make a Sex Discrimination Complaint Title VII Protected ActivityFacts

Susan Mumm complained to her employer, the Township, about being disciplined for performance-related reasons (she was an accountant, among other duties). After the Township addressed her complaint, Mumm’s supervisor, Ken Schwartz, asked her to withdraw the complaint.

During a subsequent meeting, Mumm stated she would withdraw her complaint only if the Township granted her an immediate pay raise of $10,000 because she was “tired of being underpaid for all these years in relation to Keith Lockie.” Lockie (male) was another Township accountant. Mumm also claims she informed her supervisor that she had consulted a labor attorney, and she intended to file a lawsuit if the Township did not address “the pay discrimination between Keith and me.”

The Township subsequently fired Mumm because it had “lost trust” in her after the meeting, which the Township considered to be the “last straw” in a number of inappropriate actions. True to her word, Mumm filed a lawsuit alleging multiple claims, including a retaliation claim under Title VII. Under Title VII, it is unlawful for an employer to retaliate against an employee for engaging in Title VII-protected activity. The district court granted summary judgment to the Township on all of Mumm’s claims, holding Mumm’s complaint did not constitute Title VII-protected activity. Mumm appealed to the Sixth Circuit.

What the Sixth Circuit Said on Appeal

The Sixth Circuit reversed the trial court. The court held that Mumm’s threat to sue was clear enough to be protected activity and the Township “should have known Mumm was charging the Township with sex discrimination.” The Sixth Circuit sent the case back to the district court for a jury trial.

In reversing summary judgment, the Sixth Circuit found that even though Mumm did not say “sex discrimination” or make clear she believed gender explained the pay difference between her and Lockie, the Township officials knew Lockie was male, knew he occupied a similar position, and knew that he (like Mumm) was an at-will, non-unionized employee.

“Mumm pointed to a specific practice she believed to be unlawful (the pay disparity between her and Lockie) and threatened to sue if the Township did not correct it. . . .It makes no difference that Mumm did not utter the magic words ‘sex discrimination.’”

The Sixth Circuit also held that a reasonable jury could find the Township’s reasons for Mumm’s discharge were pretextual.

Takeaways

This case is a good lesson for employers dealing with employees who raise complaints.

  • Don’t be picky when determining whether an employee has complained about discrimination. As the Sixth Circuit found, an employee does not have to use certain “magic words” to engage in protected activity. If it is a close call, treat it like a discrimination complaint.
  • If an employee complains about something you think could be about discrimination (even if the employee did not expressly say it), treat it accordingly. Investigate that complaint.
  • Don’t retaliate against an employee for bringing it up. You can address issues, discipline if necessary, etc., but don’t base a decision on the fact that the employee complained. Otherwise, you may have to be explaining yourself to a jury.

The More You Know…Or Others Think You Know: Fifth Circuit Finds Decision-maker Had Knowledge to Constitute RetaliationThe Fifth Circuit has issued another opinion in the continuing saga of Jackson State University and its past athletic director, Dr. Vivian Fuller—this one about retaliation against a witness. To refresh everyone’s memory: A secretary at JSU filed an EEOC charge claiming that AD Fuller sexually harassed her and then fired her. During its investigation, JSU’s attorneys and the EEOC interviewed Fred Robinson, the Director of Sports Medicine, who witnessed some of the AD’s actions. A month after those interviews, AD Fuller terminated Robinson. He felt it was retaliation for his testimony; JSU said it was due to a reorganization of the athletic department and issues with Robinson’s daily availability.

The District Court Case and Verdict

Robinson sued JSU alleging retaliation under Title VII and the First Amendment. The case went to trial and the two big questions were: 1) Did Dr. Fuller actually know that the EEOC interviewed Robinson, and 2) were the reasons for Robinson’s termination simply pretext for retaliation? At trial, Dr. Fuller denied any knowledge of Robinson’s interviews. Without direct evidence, Robinson offered circumstantial evidence including: 1) He was fired not long after his EEOC interview; 2) JSU’s own attorneys knew about the interview and met with Fuller after the interview; 3) Dr. Fuller started avoiding him after the interview; and 4) JSU’s president had threatened to fire anyone who was against the AD (pretty strong one, there). JSU countered by claiming that Dr. Fuller had already decided to fire Robinson before the interview even occurred and also came up with some other incidents.

The jury sided with Robinson and awarded him just over $30,000 in compensatory damages and $75,000 in punitive damages. JSU moved to set aside the verdict claiming that there was insufficient evidence to show that the decision-maker, Dr. Fuller, had actual knowledge of Robinson’s EEOC interview, so she could not have retaliated against him for it. The court agreed with JSU and overturned the verdict. Robinson appealed.

What the Fifth Circuit Said

The Fifth Circuit narrowed the issue to whether there was legally sufficient evidence that Robinson’s EEOC interview (the protected activity) caused his termination (the adverse employment action). If Dr. Fuller had no knowledge of the protected activity, the termination could not be retaliation. The court noted that direct proof that a decision-maker had knowledge could be “elusive” — almost all of the people being accused of retaliating are going to feign ignorance of anything that could have given them a motive. For example, “I had no idea that Suzie had reported our slippery floors to OSHA! I terminated her only because we no longer needed an accountant.”

In the Fifth Circuit (Mississippi, Louisiana and Texas), for a successful retaliation claim you have to show that the actual decision-maker had knowledge — not just that the corporation had constructive knowledge (as it is in other federal circuits). In this case, JSU argued that all of Robinson’s evidence was merely speculative. However, as the Fifth Circuit noted, it obviously was enough for the jury. The indirect and circumstantial evidence, such as the president’s threat to fire anyone who opposed the AD and the JSU’s attorneys meeting with the AD after the EEOC’s interview with Robinson, were, according to the Court, the “prototypical circumstantial indicators of decision-maker knowledge.” In regular speak, it was enough to convince the jury, and ultimately the Fifth Circuit, that Dr. Fuller knew about Robinson’s interview, despite her denials. The Fifth Circuit reversed the lower court’s striking of the verdict.

What Does this Teach Us?

Just because you have a decision-maker who says he didn’t know about a complaint (or EEOC charge, OSHA report, ADA request, or whatever) before he terminated the complaining employee or one of her witnesses that may not get you off the retaliation hook. Before you pull the trigger, you need to look at all the circumstances surrounding the potential adverse employment decision. Is it close in time to the protected activity (e.g., complaint, testimony)? Who knows about the protected activity, and what access have they had to your decision-maker? Has your CEO or anyone else made any threats or other comments about the claim that could hurt down the road?

As we always say, retaliation can be tricky. You have to not only defend the complaint but also prevent the retaliation fallout. While filing a complaint doesn’t make an employee bulletproof, it should at least make the employer take a good look at any future decisions that may affect that person or his or her supporters.