Employer’s Actions After An Employee Leaves, Now Faced With A Retaliation Claim

This case is a valuable lesson about what can go wrong when a dispute between an employer and a former employee goes public (which is why we encourage employers not to disclose any information about a former employee unless under very limited circumstances).

John Ray, and African-American, is a former associate of Boston white-shoe law firm Ropes & Gray. When the firm passed him over for partner, he first filed an EEOC discrimination charge, and then a lawsuit, claiming that the firm had illegally passed him over for partner. After Ray leaked to a legal blog a copy of an EEOC probable-cause finding on his retaliation claim, the blog sought comment from Ropes & Gray. The firm responded by providing a copy of an earlier EEOC no-probable-cause finding—which the blog published, and which included details about Ray’s performance reviews and an internal investigation into Ray’s alleged criminal conduct while at the firm. This was a mistake. They provided too much information.

In the subsequent litigation, Ray claimed that the release of the EEOC’s no-probable-cause finding was a sufficient adverse action to support a claim for retaliation under Title VII. The district court agreed, although I disagree, that releasing only the EEOC’s no-probable-cause finding would be so problematic.

Title VII prohibits an employer from responding to protected activity by taking an action that would “dissuade a reasonable worker from making or supporting a charge of discrimination.” The threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.
Ropes & Gray did not start the public war of words with its former employee. Ray took his issues public first. An employer should have the right to defend itself in the sphere of public opinion. If the employer fired the first publicity shot, I could better understand a finding of retaliation. Merely responding to a smear that someone else started, however, should not be viewed as an adverse action, no matter how wide Title VII’s retaliation lens might be.

Nevertheless, this case illustrates that retaliation comes in all shapes and sizes, and employers must act with extreme care when dealing with any employee who engaged in protected activity. If something such as responding to publicity started by a disgruntled ex-employee can constitute an adverse action, the scope of what acts fall outside Title VII’s definition of “adverse” is getting smaller and smaller, which makes these claims all the more dangerous for employers.

So, what does all of this mean? The employer won on the issue of discrimination but now faces a retaliation claim that is presently moving forward. As we have discussed in our seminars retaliation is, and has been, in a protected class. You cannot wear your emotions on your sleeves. This employee was gone and because of comments he had made the employer reacted and is now in litigation. When they are gone, move on. Forget whatever they say after they have left.

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