Retaliation Claims Continue to Rise… and Business Marches On

Contributed by Noah A. Frank

While the total number of charges before the EEOC increased by 18,732 for the 15 year period 1997 to 2012, the total number of retaliation charges has increased at a faster rate, by 19,638.  In fact, in 1997, retaliation accounted for 22.6% of charges, and in 2012 retaliation accounted for 38.1% of charges.  As claimants become more sophisticated, they will continue to assert retaliation as one of their bases of discrimination.

Recently, in Benes v. A. B. Data, Ltd., Case No. 13-1166, the Seventh Circuit granted a victory to employer A.B. Data for terminating employee Michael Benes for acting out during an EEOC-sponsored mediation.  

Benes had been employed by A. B. Data for four months prior to claiming sex discrimination.  After receiving an offer that he deemed too low during the mediation, he entered his employer’s representative’s separate mediation room, and declared: “You can take your proposal and shove it up your [expletive omitted] and fire me and I’ll see you in court.”  With its representatives shaken, A. B. Data accepted Benes’s proposal and terminated him within an hour. 

The court found that there was no retaliation for terminating the employee where the employer would not have tolerated such conduct had it occurred at work.  The court held that Title VII (and instigating proceedings under it) does not create a privilege for any party to misbehave in mediation or court; The Title VII anti-retaliation provisions forbid only that conduct which would dissuade a reasonable worker from making or supporting a charge of discrimination.

Lessons Learned: Even though the Seventh Circuit ultimately agreed with A. B. Data’s decision to terminate Benes, three years of litigation passed prior to arriving at this stage.  While an employee who reported discrimination internally or filed a claim with an agency does not have an unqualified immunity to misbehave, the situation should be handled carefully.  Consider speaking with counsel prior to effectuating discipline, as it is becoming more and more likely that the employee will tack retaliation onto any charge.