After filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), most parties are offered the opportunity to try to resolve their dispute through EEOC mediation. At LeBlanc Law & Mediation, we encourage clients to give this mediation process a chance, because for many it results in better resolutions, without the time, expense and uncertainty of a lawsuit.
While most of what is said and done during mediation is confidential, it is important to realize that your actions during mediation can have consequences.
Take, for example, a case decided in the 7th Circuit this week, Benes v. A.B. Data Ltd. The employee in this case filed a charge against his employer with the EEOC, and while still employed, went to mediation. While in separate sessions, the mediator presented the employee with an offer from the employer that the employee felt was too low. In response, he stormed into the room used by the employer and told them “You can take your proposal and shove it up you’re a** and fire me and I’ll see you in court.”
So the employer did fire him. In response, he sued the employer for retaliation under Title VII.
But this week, the Seventh Circuit Court of Appeals ruled against him, holding that his outburst during mediation – which violated the rules set by the mediator — was not protected by Title VII and the retaliation provision of Title VII does not protect an employee from being terminated for conduct that justifies termination.
This goes hand in hand with our post from July 8th on the higher standard of proof for retaliation cases. To succeed, an employee must prove that the only reason they were fired was because they engaged in a protected activity, like filing a charge against the employer. Telling an employer to “shove it up you’re a**” is not a protected activity.
A Side Note
Mediation, like any settlement negotiations, can be a frustrating process. At LeBlanc Law & Mediation, we take the time to explain to our clients what to expect as the mediation proceeds – often warning clients that the first offers from an employer can often be very low, and may feel insulting.
Don’t let first offers drive you from the table. Mediation is a process, and working with the mediator often helps parties find mutually beneficial solutions that they can both agree to.
If you have questions about the EEOC mediation process, contact a Minneapolis employment lawyer with LeBlanc Law & Mediation at 612-819-9652.
