While Title VII’s anti-retaliation provision does not prohibit all employer action after an employee has filed a discrimination charge or lawsuit, it precludes employers from taking an action that might dissuade a reasonable employee from making or supporting a discrimination charge. Recently, the 7th U.S. Circuit Court of Appeals reviewed the retaliation claim of an employee who had been fired after verbally accosting the employer’s representatives at a mediation, and determined that such a firing was not the type of action likely to keep reasonable individuals from filing discrimination claims and, therefore, was not retaliatory. Benes v. A.B. Data, Ltd., 7th Cir., No. 13-1166, July 26, 2013.

Michael Benes was employed by A.B. Data for only four months before filing a charge of gender discrimination with the EEOC. Both Benes and the EEOC agreed to a mediation of the matter, and both parties engaged in the “shuttle diplomacy” often used for such procedures – that is, the parties remain in separate rooms, while the mediator shuttles back and forth between them, relaying demands, offers, and comments. The process is viewed as an opportunity for frank discussion of each party’s position and thoughts on the matter out of the hearing of the other.
During the mediation between Benes and A.B. Data, and after receiving a settlement proposal that he felt was too low, Benes stormed into the employer’s mediation room and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” He then stalked out of the room, leaving the employer’s representatives “shaken.” The Court described the employer’s reaction with tongue-in-cheek, stating that “Within an hour A.B. Data accepted Benes’s counterproposal: it fired him.”

Benes reacted by filing a lawsuit for retaliation under Title VII, abandoning his gender discrimination claim. The district court granted summary judgment to the employer, concluding that Benes had been fired for misconduct during the mediation and not for making or supporting a charge of discrimination. Benes appealed the dismissal of his claim to the Seventh Circuit.

The Seventh Circuit upheld the dismissal of the lawsuit, pointing out that Title VII does not forbid all employer actions following the filing of discrimination charges – it forbids only those that would dissuade a reasonable worker from making or supporting a charge of discrimination. According to the Court, “[t]he 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.” Therefore, such a firing does not constitute retaliation, per se.

In addition, it was Benes who sabotaged the mediation session by barging into the other side’s room and engaging in an angry outburst. The Seventh Circuit pointed out that “mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.” Just as judges can impose sanctions for inappropriate behavior during a judicial proceeding, allowing a sanction (in this case, employment termination) against an individual who engages in obvious misconduct during a mediation will not undermine the goals of Title VII and, in fact, may support them. Based on that fact, the Seventh Circuit upheld the dismissal of Benes’ retaliation claim.

While this case supports the general policy that not every action against an individual who has engaged in a protected activity under Title VII constitutes retaliation, the Court’s holding is more specific than that. Here, the Court specifically found that there is no privilege on the part of an employee to misbehave or engage in inappropriate behavior during a mediation process. Because the number of employment cases currently being mediated continues to rise, this case provides to mediators and other neutral third parties some guidance that may assist in creating a more civil and effective resolution process for such matters.