Conflict Resolution|Employment|Mediation

You Weren't Fired Then, But You Are Now!

Several list serves and correspondents have taken note of the July 26, 2013 decision of the Seventh Circuit Court of Appeals in the matter Benes v. A.B. Data, Ltd.  The opinion, authored by Chief Judge Easterbrook, is not earth-shattering.  But the case is diverting nevertheless and might bring a smile to students of EEOC mediation.

Plaintiff Banes had worked at A.B. Data for only four months when he filed a charge of sex discrimination with the EEOC.  The agency arranged a mediation.  After a joint session, the parties retired to caucus rooms while the mediator went back and forth between them.

The mediator conveyed a settlement offer to the plaintiff that Banes apparently thought too low.  According to Judge Easterbrook:

Benes stormed into the 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 stalked out, leaving the employer’s representatives shaken.  Within an hour A.B. Data accepted Benes’ counterproposal: it fired him.  He replied with this suit [citing] the anti-retaliation provision of Title VII…. His claim of sex discrimination has been abandoned.

A.B. Data was granted summary judgment, the trial court finding that Benes had been fired for misconduct during the mediation, not for making a charge of discrimination.  On appeal, the Seventh Circuit affirmed.  Interestingly, it “put to one side” Benes’ words, concentrating on the fact that he entered the other caucus room at all.  “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.” Indeed, the court held, sanctioning a party “who by misconduct wrecks a mediation” will advance the goals of the anti-discrimination statute.

On a separate ground, the court noted that retaliation is unlawful only if it is intended to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Sanctions for misconduct during a mediation would not dissuade someone from filing or pursuing a charge with the EEOC, and the fact of a mediation does not insulate a claimant from the consequences of behavior that, if it occurred outside the mediation, would warrant termination.

Concluded the Seventh Circuit, Title VII “does not create a privilege to misbehave in mediation.”

Moral of the story:  When a mediator asks you to stay in a caucus room, stay there.

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