Workplace Culture

More on Retaliation for Firing After Complaints of Third-Party Discrimination

By Staff Report

Mar. 27, 2013

Yesterday’s post on #Donglegate—the firing of Adria Richards after she tweeted her displeasure at the off-color jokes told by a pair of fellow attendees at an industry conference—created quite the debate.

On Twitter, Chris McKinney argued that I confused the questions.

Meanwhile, blog reader Kent Mannis commented that the employer should be liable because Richards was “opposing” unlawful harassment:

Richards’ employer isn’t potentially liable for what the conference attendees did, but it may be liable for what it did (e.g., retaliate against her for her complaint)…. So, does she lose protection for using social shaming as a way of opposing another harassing drip? We want employees to try (if they can) to say “stop that” to their harassers before suing; we want them to stand up for themselves. Isn’t that what Richards did? Wasn’t she protected for “opposing”?

Despite the criticism, I do not believe that my opinion that Richards’ termination is lawful is off-base. For Title VII to protect her complaints as opposition conduct, she must have a reasonable belief that she is complaining about something unlawful. Yet, Title VII does not protect an employee from a hostile work environment created by a non-employee unless the employer can exert some reasonable degree of control over the non-employee. If Richards’ employer cannot control the people about whom she was complaining, why should Title VII protect the complaints at all?

Additionally, recall that “venting” does not qualify as “opposition” under Title VII. There is a good argument to be made that Richards was not complaining about harassment or discrimination, but merely blowing off steam about the boorish behavior of some follow conference goers.

Moreover, even if Title VII protects Richards’ online venting as “opposition,” it is doubtful she will be able to establish a nexus between her comments and the termination. Her employer did not terminate her because of the contents of her tweet, but because of the very public nature of her complaints. Had she raised the issue privately with her employer, it is fair to assume that she’s still be employed and we would not be having this healthy debate.

What do you think about Richards’s termination? Eric Meyer wants you to answer a short, one-question poll and let him know whether you think her firing was fair. I can’t wait to read the results.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Workplace Culture

Workplace productivity statistics and trends you need to know

Summary There was a 2.4% decrease in productivity in Q2 2022 – the largest decline since the U.S. Burea...

productivity, statistics, trends, workplace

workforce blog

Workplace Culture

5 lunch break statistics that shed light on American work culture

Summary Research shows how taking lunch breaks enhances employee engagement and productivity. Despite t...

lunch breaks, scheduling, statistics

workforce blog

Workplace Culture

6 Things Leadership can do to Prevent Nurse Burnout

Summary Nurse burnout is a serious issue in the healthcare business and has several negative consequenc...

burnout, Healthcare, hospitals, nurses