“Take This Proposal and Shove It” – It’s Almost Always a Fireable Offense

By Eric B. Meyer

Over the weekend, I read this opinion from the Seventh U.S. Circuit Court of Appeals in Chicago. From the opening paragraph, it had my attention.

After working at A.B. Data for four months, Michael Benes charged the firm with sex discrimination. The EEOC arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise.

But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” Benes stalked out, leaving the employer’s representatives shaken. Within an hour A.B. Data accepted Benes’s counterproposal: it fired him. He replied with this suit under 42 U.S.C. §2000e-3(a), the anti-retaliation pro- vision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination has been abandoned.”

Shooting off your mouth during mediation

Noting that firing Benes would have been appropriate, if during the mediation, “Benes had punched or shot the employer’s representatives” — you think? — the Seventh Circuit concluded that even though “his misconduct was a less-serious breach of the mediation protocol,” firing Benes was still for employee misconduct, and did not amount to retaliation.

Indeed, just because an employee files a charge of discrimination, or complains internally about discrimination, doesn’t insulate him from potential punishment. Retaliation encompasses action that would dissuade a reasonable worker from making or supporting a charge of discrimination. As the Seventh Circuit noted, canning an employee who shoots off his mouth at mediation, not so much:

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.”

No carte blanche to violate work rules

I often raise this issue when offering “respect in the workplace” training for employees. That is, just because an employee complains about discrimination in the workplace place doesn’t mean that he has carte blanche to violate work rules. The complaint only protects the employee from discipline because of the complaint.

Article Continues Below

If, instead, that employee decides to stop performing job duties, or responds with “shove it up your ass and fire me and I’ll see you in court,” now you’ll know what to do.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

Topics

Leave a Comment

Your email address will not be published. Required fields are marked *