Mediation Goes Awry for Worker

After Outburst, He Won’t See Employer in Court

There is a new way for a worker to lose a lawsuit in federal court.

A three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago, IL, ruled recently that a worker could be fired for misbehaving during a mediation session called to resolve his complaint of sex discrimination.

Michael Benes had charged his Wisconsin employer, A.B. Data, Ltd. with sexgaveldiscrimination after working for the company for four months.

 The U.S. Equal Employment Opportunity Commission arranged for mediation in which, after an initial joint session, the parties separated into different rooms and a go-between relayed offers.

Upon receiving a settlement proposal that he thought too low, court papers say Benes “stormed” into the room used by A.B. Data Ltd. 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.”

The company accepted Benes’ counterproposal but then fired him.

Retaliation

Benes filed suit under the anti-retaliation provision of Title VII of the Civil Rights Act, 42 U.S.C. 2000e–3(a), which bans retaliation because a person “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” [Emphasis supplied].

A magistrate judge upheld Benes’ dismissal, finding that Benes was fired for misconduct during the mediation, not for making or supporting a charge of discrimination.

The appeals court agreed and upheld Benes termination.

In the past, Benes’ misbehavior might have resulted in a sanction by the court or his employer.

Ignores the Employer’s Behavior

An opinion written by Chief Judge Frank A. Easterbrook states – without explanation – that Benes “abandoned” his claim of sex discrimination upon filing the retaliation complaint. This is somewhat baffling in that the original complaint of sex discrimination obviously was the underlying basis for the retaliation complaint.  Benes would never have been engaged in mediation if he had not filed the discrimination complaint. And Benes would not have been fired if he had not engaged in mediation.

The appellate panel proceeded to completely ignore A.B. Data’s  behavior and to focus only upon Benes’ conduct. 

Judge Easterbrook said Benes’ actions constituted a “serious breach” of the mediation protocol, adding, “If A.B. Data would have fired a person who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation.”

The appellate panel said that Title VII does not establish a “privilege to misbehave” in mediation.

Chief Judge Easterbrook writes that 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.

Impact of Harassment

The details of the alleged discrimination suffered by Benes were not included in the appellate decision, nor are the details of the offer submitted by A.B. Data to resolve Benes’ complaint.

Those of us who work in the area of workplace bullying and abuse are familiar with the well-documented mental and physical stress suffered by targets over time, which occasionally results in erratic or self-defeating behavior. For these and other reasons,  mediation is not ideal in these cases.

Benes clearly did himself no favors with his hotheaded behavior. Still, this decision appears to be yet another indicator of the lack of sympathy for the problem of workplace abuse in the federal courts, where, coincidentally,  judges have lifetime tenure.

Research shows that employment discrimination cases are dismissed at a far higher rate than other types of cases in federal courts before they ever reach a jury.

Workers beware – any breach of civility on your part at any point in the proceedings can have severe consequences. 

Laws and Workplace Abuse

No federal or state  law specifically addresses workplace “bullying” but that doesn’t mean a target is without legal recourse.

Workers file lawsuits every day against abusive employers and supervisors.  For example, a worker who falls within a protected category under Title VII of the Civil Rights Act of 1964 may be able to file a discrimination complaint.  (Note that any complaint of discrimination must first be filed with the U.S. Equal Employment Opportunity Commission.  See the EEOC web site for details.)

You can find a wide range of federal and state laws on this web site that may be applicable to your situation.

You are encouraged to consult with an attorney in your community or you can  arrange a consultation with Patricia Barnes (barnespatg(at)gmail.com)

This is your job, Your livelihood.  Before you let a bully rob you of your financial security and everything else that flows from that, consult an attorney who is specialized in employee-side employment law to see what rights, if any, you have.

You may need to be persistent. It can be difficult in some locales to find an employment law attorney who represents plaintiffs (targets/employees). And it can be even more difficult to find an attorney willing to take your case. Some individuals represent themselves in court.

Here are a couple of suggestions on where to look for an attorney:

  • You might try Martindale Hubble, which lists attorneys and provides a rating system.
  • The National Employment Law Association  maintains a listing of employment lawyer members on its web site. –
  • Every state bar association has a referral list of attorneys who are willing to accept clients and they are listed by area of expertise.
  • The local bar association may host an opportunity to talk to a lawyer at no cost one day a week/ month at a local library.

Stopping Sexual Harassment

In the past, this blog has questioned why sexual harassment is not a criminal offense in the United States as it is in France.

Now the U.S. Equal Opportunity Commission (EEOC) has filed a second complaint against a business owner who is  characterized as a “serial” sexual harasser because he paid  $780,000 to five women in 2003 to settle a sexual harassment complaint.

The EEOC alleges that Fred Fuller Oil Company, a Hudson, N.H.-based oil company, violated federal law when  owner Fred Fuller sexually harassed two women, caused the constructive discharge of one, and fired the other.

Fuller allegedly forced Nichole Wilkins to quit in July 2011 after he sexually assaulted her by grabbing and squeezing both her breasts from behind while pinning her against her desk.  The EEOC says this assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. 

 Fuller then allegedly created a sexually hostile work environment for Wilkin’s friend and co-worker, Beverly Mulcahey. Shortly after Wilkins notified Fuller in October 2011 that she intended to file an EEOC charge of discrimination, Fuller fired Mulcahey for poor performance.

Déjà Vu

The EEOC sued Fred Fuller Oil Company in 2003 and settled that case in July 2005, winning  $780,000 in relief for five women.  As part of the settlement, the company agreed to undergo training aimed at conforming to Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

Markus L. Penzel, trial attorney in the EEOC’s Boston Area Office, said in a press release last month, “The Commission characterized Fred Fuller as a ‘serial sexual harasser’ in its first lawsuit.  Unfortunately, that still seems to be true.”

With sincere respect to Mr. Penzel, it is more than unfortunate that additional women were allegedly targeted by Fuller.  If the EEOC’s complaint is true, these women not only suffered emotional distress but were hounded out of their jobs, resulting in a loss of their financial well-being.

The women who worked for Fred Fuller Oil Co. probably have little in common with  Sherly Sanburg, the billionaire Harvard University graduate and  chief financial officer of Google. She implies in a recent bestselling book that women are partly responsible for their own lack of equality in the workplace. 

The reality is that victims of sexual harassment often are single mothers living paycheck-to-paycheck, with few other employment options, and college students who are trying to earn money to pay their tuition. These women are vulnerable, often not believed, sometimes blamed, almost always powerless and utterly disposable.   

Get Serious!

There’s been a lot of discussion about sexual harassment in the military as a result of publicity surrounding alleged improper sexual conduct of military officers who are responsible for protecting  women from sexual harassment. Surveys show that a third of American women report experiencing sexual harassment in the workplace.

Employers have done far too little to halt sexual harassment and the EEOC lacks the resources to effectively address this problem. 

It appears that Fred Fuller  was not deterred by a monetary fine. He  also did not appear to  benefit from education about what constitutes improper sexual conduct in the workplace or training on  how to comply with Title VII of the Civil Rights Act. What might have deterred Mr. Fuller?

 France’s  Law

France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison.

New articles in the French Labor Code and the Penal Code state:

“Harassment is the fact of imposing on a person, in a repetitive fashion, statement or behavior of a sexual connation which violate a person’s dignity by virtue of their degrading or humiliating character or create as concerns such person an intimidating, hostile or offensive situation.”

Under the French law, it is considered an “aggravating circumstance” if a perpetrator of workplace sexual harassment is abusing his or her authority.

If Fred Fuller had snatched the purse of his first victim, he would have been lucky to get just a warning.  If he had continued this behavior, he would  have spent time in jail. That’s because stealing a  purse is a crime. 

Shouldn’t it be a crime to steal someone’s peace of mind and financial livelihood?  

EEOC’s 1st Genetic Discrimination Class Action

Update: The U.S. Equal Employment Opportunity Commission settled this case on Jan. 10, 2014 when Founders Pavilion Inc.  agreed to a five-year consent decree in which it will provide a fund of $110,400 for distribution to 138 individuals who were asked for their genetic information and $259,600 to five individuals whom the EEOC alleged  were fired or denied hire in violation of the ADA or Title VII.

IGenesmagine that an employer could ask applicants  about their family’s medical history: “Do you have a parent or grandparent who suffered from epilepsy. sickle-cell anemia Huntington’s Disease, etc.?”

Why would an employer ask such a question? To find out if the applicant could have a genetic predisposition for a disease that could lead to higher medical expenses down the road. Many employers would simply throw the application into the garbage if an applicant answered the question affirmatively. 

So-called “genetic discrimination”  has been illegal since the  Genetic Information Nondiscrimination Act (GINA) was signed into law by former President George W. Bush  on May 21, 2008.  However, the U.S. Equal Employment Opportunity Commission (EEOC), the authority responsible for enforcing GINA, has done little to enforce it.  Until now.

One of the six national priorities identified in the  EEOC’s strategic plan is  to address emerging and developing issues in equal employment law, including the problem of genetic discrimination.

 The EEOC filed and settled its first GINA lawsuit on the same day earlier this month when it reached a consent decree with a Tulsa, Oklahoma company,  Fabicut, Inc.   Now the EEOC  has filed its second federal GINA lawsuit and its first Class Genetic Information Discrimination Suit.

Violations

The EEOC alleges that  Founder’s Pavilion, Inc., a  Corning, NY, nursing and rehabilitation center, violated GINA by asking for genetic information during the hiring process. Founders is also charged with violating the Americans with Disabilities Act  (ADA) and Title VII of the Civil Rights Act of 1964.

Founders allegedly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.

The lawsuit alleges that Founders fired two women because of perceived disabilities and fired another employee after it refused to accommodate her during her probationary period,  all in violation of the ADA.

Founders also allegedly either refused to hire or fired three women because they were pregnant, in violation of Title VII.

The EEOC filed the lawsuit in federal court after it was unable to reach a pre-litigation settlement with Founders. 

GINA

GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.

“GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law,” said Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office. “Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”

GINA also forbids unions and labor organizations from discriminating on the basis of genetic information.  

Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle-cell anemia, a disease which afflicts African-Americans.  In the early 1970s, some state legislatures began mandating genetic screening of all African-Americans for sickle-cell anemia, leading to discrimination and unnecessary fear.

Furthermore, genetic history does not  always equal genetic future. As a result of rapid advances in technology, there is far less certainty today that any individual will inherit  or be incapacitated by a genetic disease.

 * Patricia G. Barnes is the author of Surviving Bullies, Queen Bees & Psychopaths in the Workplace.