While attending a conference, Adria Richards became
offended by two attendees sitting behind telling inappropriate jokes. So, she tweeted her grievance. Then, she blogged about it. Then, her employer fired her. Ars technica has the full details.
If the people about whom Ms. Richards complained were
co-workers, or they made the offensive comments while in her place of
employment, she would have an easy retaliation claim. The perpetrators,
however, did not work with Ms. Richards, and the only relation between the
alleged misconduct and her employment is the coincidence that she had the
experience at a conference she was attending on her employer's dime.
The question, then, is whether Ms. Richards can claim
retaliation based on complaints about which her employer was powerless to
At his Employer Handbook Blog, Eric Meyer argues that Ms.
Richards's complaints are protected by Title VII:
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 unlawful.
I disagree. For Ms. Richards
to have a reasonable belief that she experienced unlawful discrimination or
harassment, her employer needs to be able to do something about the alleged
discrimination or harassment. What could Richard's employer have done? It
couldn't conduct an investigation. It couldn't discipline the alleged
perpetrators. All it could do is alert the conference of the issue and suggest
that Ms. Richards distance herself from the situation.
Ms. Richards did not complain
about illegal discrimination. She complained about boorish behavior by two individuals
completely outside of her employer's sphere of control. I do not believe Ms.
Richards's complaints in these circumstances should be protected. To hold
otherwise would hold employers accountable for the behavior of the entire
world, whether or not the employer has the ability to influence the conduct or
punish the misconduct. Title VII's anti-retaliation provisions should not cast
this wide of a net.
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