Is this Retaliation 2.0?
Two weeks ago, Adria Richards attended an industry
conference at which she overheard sexual jokes from two attendees sitting
behind her during a session. So, she complained...on Twitter:
And then she blogged about it here. The social-media complaints resulted in one of the
joke tellers getting fired. And, last Wednesday, Ms. Richards tweeted that her
employer supported her.
That same day, SendGrid, Ms. Richards's employer, fired
(Jon Brodkin at arstechnica.com has the full story here).
We can argue about the propriety of using social media to
publicize a harassment complaint, especially when a private complaint could
have sufficed. Still, the SendGrid response certainly seems harsh and unfair.
But did SendGrid go so far as to retaliate
(as a matter of law) against Ms. Richards?
It's a tough one.
Over the weekend, I read this article in the San Jose Mercury News about the
firing. Two lawyers, one who represents employees, another who represents
employers, were asked whether firing the tweeter/blogger was legal?
The plaintiff's lawyer said of the employer,
"They're basically retaliating against her for speaking out about sexual
harassment." The defense attorney acknowledged that the "law is
strong in protecting people who make complaints of harassment, or who
participate in an investigation about complaints of harassment." He called
the situation "a tough one."
For what it's worth, SendGrid justified its response in its own
blog post. Underscoring that SendGrid, "supports the right to report
inappropriate behavior, whenever and wherever it occurs," the company
noted that "her decision to tweet the comments and photographs of the
people who made the comments crossed the line. Publicly shaming the offenders -
and bystanders - was not the appropriate way to handle the situation."
A complaint, by any other method or medium,
is still a complaint.
The anti-retaliation provisions of Title VII of the Civil
Rights Act of 1964 make it unlawful to discriminate against an individual
because s/he has opposed any practice made unlawful under the employment
discrimination statutes (i.e., a protected activity).
The law itself does not place any restrictions on the
manner in which an employee complains about discrimination. Before the advent
of social media, employees generally complained about workplace harassment
in-person, via telephone, in a letter, or through email. A tweet and a blog
post may be anything but the traditional way to complain. But a complaint via
social media is a complaint nonetheless. Call it the 21st century equivalent of
taking an ad out in The New York Times, or maybe the actions taken in this 1990 case, where the plaintiff wrote letters to
customers criticizing her employer's alleged discrimination.
So, the issue of law here is not how Ms. Richards
complained. Rather, it's whether Ms. Richards opposed a practice made unlawful
under the employment discrimination statutes? That is, did SendGrid have any
responsibility to offer protection to Ms. Richards from sexual comments made on
a business trip by non-employees?
This is a story about control.
As I noted above, this is not an easy one to analyze.
But, a little research I performed over the weekend yielded this case (Little v. Windermere Relocation, Inc.) [an enhanced version of this opinion is available to lexis.com
subscribers], which suggests that Ms. Richards may have a viable
retaliation claim against her former employer.
In Little, a corporate services manager was told
to cultivate a business relationship with a client to try to get his account.
When she went to a business dinner with the client to discuss the account, he
drugged her at the restaurant and she awoke to find herself being raped by him
in his car and apartment. When she recounted what happened to co-workers, they
said that reporting it would jeopardize her career. When she reported it to a
supervisor, she was not removed from the account. When she finally told the
company president, he said he did not want to hear about it and reduced her
salary. She said that the pay cut was unacceptable to her, and he responded
that it would be best if she moved on and cleared out her desk. The court held
that she had presented sufficient evidence that the employer had ratified or
acquiesced in the rape, which occurred in the "work environment" as
construed to include out-of-office meetings with business clients.
All it takes is a reasonable belief.
I could distinguish Ms. Richards's situation, given that
her complaints were not about company clients. However, it appears that she was
attending a business conference at SendGrid's behest. And I assume a benefit to
SendGrid was Ms. Richards learning and networking with other conference
attendees. Therefore, if a conference attendee engaged in behavior that amounts
to discrimination or sexual harassment, then Ms. Richards's social media
complaints could amount to protected activity.
Remember also that even if the law does not technically
recognize the actions of which Ms. Richards complained as unlawful
discrimination, to engage in "protected activity," she need only have
a reasonable belief that what she experienced was
So, although SendGrid may have preferred that its
employee utilize another method to complain about sex discrimination at the
conference, the law is not concerned with the employer's preference. A
complaint by any other method or medium -- even social media -- is still a
complaint. The law is designed to protect employees from unlawful harassment
and those who complain about it.
Consequently, firing an employee who complains about what
she believes to be sex discrimination is often a recipe for disaster. Firing an
employee because of that complaint, well...
It may be time for SendGrid to lawyer up. Fast.
This article was originally published on Eric B. Meyer's blog, The Employer Handbook
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