The workplace is often incredibly uncomfortable following an employee’s claim of work-related discrimination. The employer must balance its goal of productivity and profit while maintaining employee morale and equality on the job. At times, an employer facing a charge of discrimination may feel hamstrung by the looming charge and may permit employee conduct that was otherwise sanctionable out of fear of what may be perceived as retaliation against the employee for filing a charge. But, as the recent decision out of the Seventh Circuit proves, a charge of discrimination does not provide the employee with free reign to violate work-place protocol.

This lesson arises from the July 26, 2013 opinion in Benes v. A.B. Data, Ltd., 7th Circuit Court of Appeals.  Benes charged his employer with sex discrimination after working at AB Data, Ltd. for four months. The Equal Employment Opportunity Commission (EEOC) ordered that the matter proceed to mediation. As is often the case, the employee and employer were separated during the mediation and a mediator relayed the settlement terms to the parties. Following the initial settlement offer, Benes stormed into the room used by his employer’s representatives and shouted, “You can take your proposal and shove it up you’re a** and fire me and I’ll see you in court.”

The employer complied with this request and promptly fired Benes. In turn, Benes dropped his discrimination claim and filed an anti-retaliation lawsuit under Title VII of the Civil Rights Act, 42 U.S.C. 2000e–3(a). On appeal, the 7^th Circuit affirmed the court’s dismissal of the claim and held that Benes had been fired for misconduct during the mediation, not for making or supporting a charge of discrimination.

The lesson is that a complainant alleging discrimination or other work-place related allegations is not entitled to immunity from discipline for workplace misconduct. Improper retaliation includes any conduct by the employer that could dissuade an employee from pursuing a charge of discrimination. But, according to the 7^th Circuit, “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.” So, the employer is entitled to enforce the standards set forth in its employee handbook or other known rules so long as that enforcement does not dissuade employees from enforcing their right to discriminatory-free work place.

For more information about how this case may impact your business, contact:

• Seth L. Laver (267.519.6877; slaver@goldbergsegalla.com)
• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Labor and Employment Practice Group.