Wednesday, March 27, 2013

More on retaliation for firing after complaints of third-party discrimination

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:

Richard’s 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 Ms. Richards’s 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 Ms. Richards’s 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 Ms. 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 Ms. Richards’s 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 Ms. 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.