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Employee's Conduct At EEOC Mediation Leads to Permissible Firing

A recent 7th Circuit Court of Appeals retaliation case demonstrates that employees must adhere to certain levels of decorum. After receiving a settlement proposal he thought was insultingly low during an Equal Employment Opportunity Commission ("EEOC") mediation, Michael A. Benes reportedly stormed into a room occupied by his employer's 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.'" Benes v. A.B. Data, Ltd., 119 Fair Empl.Prac.Cas. (BNA) 509, 2013 WL 3838112 (7th Cir.2013). When the employer did, in fact, fire Mr. Benes, he sought protection from the firing through the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. However, the Court found that his outburst during mediation was not protected. The Court of Appeals upheld the District Court's granting of summary judgment to the employer and indicated "[s]ince §2000e-3(a) does not create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation."

Title VII bans retaliation "because [a person] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. §2000e-3(a). The Court made a clear distinction that every employee engaging in protected activity must remember: employees are not permitted a blanket exception to work rules merely because they have engaged in protected activity. The law clearly forbids employers from taking actions in response to charges that would discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC's investigation. However, an employee is still held to the same standards that other non-protected employees are held in the workplace.

Mr. Benes's termination provides an important lesson on the use of counsel during mediations. His termination could have been prevented with the influence of a lawyer to stop his outburst in mediation. Mediations are a highly charged emotional time for most employees whose rights have been effected. While not all mediations will result in a favorable resolution, appropriate use of counsel can make sure the best possible results are achieved.

Employees must remember to utilize the knowledge and experience of their attorney when preparing for and attending EEOC mediations. Dramatic reactions to settlement proposals and outlandish outbursts are unlikely to generate any meaningful settlement movement; however, properly executed negotiation strategy will create the greatest likelihood for a successful resolution. Clients should remember that an experienced employment attorney can be a great benefit during EEOC mediation.

By: Justin A. Morocco

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