When accused of discriminating against an employee in a protected class (gender, race, etc.), an employer defends by asserting a legitimate non-discriminating/non-retaliatory business reason for its decision.
An objective reason is often easier to prove than a subjective one. However, a subjective reason can establish the defense. For example, is the rudeness or belligerence of the employee a legitimate reason?
A recent case answered yes. In the reported case, an employee had filed a charge of gender discrimination with the Equal Employment Opportunity Commission. The EEOC conducted a mediation. As expected, during the mediation, the mediator shuttled between the employee in one room and the employer in a different room.
During the mediation, the mediator presented a proposal to the employee. He must have been offended by it. The employee barged into the employer’s room and told the employer it could deposit the offer into a place where the sun doesn’t often shine. He left the room by saying to the employer to “go ahead and fire me." The employer accepted this offer and terminated the employee.
The employee sued, claiming that the termination was in retaliation for his filing of the original charge. The court disagreed.
In part, the court was admittedly concerned with protecting the integrity of the mediation process. However, the court also noted once an employee files a discrimination charge, an employer can take an action against the employee. The employer just cannot take an adverse action which would dissuade a reasonable employee from complaining of discrimination.
In this case, no reasonable employee can expect to be as rude and belligerent as the employee was in the mediation and not be disciplined. The termination was not in retaliation for the employee having filed the charge. Rather, it was the permitted response to the employee’s rude and belligerent behavior.