SendGrid’s Unlawful and Retaliatory Termination of Adria Richards

By Qusair Mohamedb­hai posted in Employ­ment Law on Sat­ur­day, March 23, 2013

On March 17, 2013, Adria Richards was attend­ing a con­ven­tion in Santa Clara, CA as part of her employ­ment duties as an employee of Send­Grid, a Boul­der, Col­orado based com­pany. Not sur­pris­ingly, the con­ven­tion con­cern­ing the Python pro­gram­ming lan­guage was mostly attended by men. Dur­ing one of the pre­sen­ta­tions, Ms. Richards was exposed to sex­u­ally harass­ing lan­guage by two men sit­ting near her. In response to the unlaw­ful con­duct, Ms. Richards tweeted this:

sendgrid tweet jpg-thumb-400x472-17892

Ms. Richards also blogged about the mat­ter. Within a few days, Ms. Richards was ter­mi­nated by Send­Grid. On March 21, 2013, SendGrid’s CEO Jim Franklin explained in a blog post that he fired Ms. Richards because “[h]er deci­sion to tweet the com­ments and pho­tographs of the peo­ple who made the com­ments crossed the line.” Send­Grid admits that Ms. Richards reported con­duct that she believed to be “inap­pro­pri­ate and of an offen­sive, sex­ual nature.” Here is the com­plete state­ment issued by SendGrid:

sendgrid blog-thumb-400x489-17895

Based on our expe­ri­ences in rep­re­sent­ing Col­orado employ­ees in wrong­ful ter­mi­na­tion law­suits, it appears that SendGrid’s ter­mi­na­tion of Ms. Richards was unlaw­fully retal­ia­tory. To suc­ceed in a Title VII retal­i­a­tion claim in Col­orado against an employer, a plain­tiff must show that “(1) the plain­tiff engaged in pro­tected oppo­si­tion to dis­crim­i­na­tion; (2) the plain­tiff suf­fered an adverse employ­ment action; and (3) there is a causal con­nec­tion between the pro­tected activ­ity and the adverse employ­ment action.” Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (inter­nal brack­ets and quo­ta­tion marks omitted).

Pro­tected oppo­si­tion to unlaw­ful dis­crim­i­na­tion can range from fil­ing for­mal charges to voic­ing infor­mal com­plaints to supe­ri­ors. See Rob­bins v. Jef­fer­son County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999). To demon­strate pro­tected oppo­si­tion to dis­crim­i­na­tion, the employee must show “he had a rea­son­able good-faith belief that the opposed behav­ior was dis­crim­i­na­tory.” Bd. of Cnty. Comm’rs v. E.E.O.C., 405 F.3d 840, 852 (10th Cir. 2005). The rea­son­able good-faith belief stan­dard “empow­ers employ­ees to report what they rea­son­ably believe is dis­crim­i­na­tory con­duct with­out fear of reprisal.” Bd. of Cnty. Comm’rs, 405 F.3d at 852. This issue is not whether the terms “forks” and “don­gles” are uni­ver­sally offen­sive, but rather, whether Ms. Richards had a good faith belief that these were sex­u­ally harass­ing terms.

The fact that Ms. Richards was sub­jected to sex­u­ally harass­ing con­duct by a non­em­ployee at a work related, but off-premises, tech­nol­ogy con­ven­tion does noth­ing to alle­vi­ate SendGrid’s respon­si­bil­ity to pro­vide a discrimination-free work envi­ron­ment for its employ­ees. “An employer who con­dones or tol­er­ates the cre­ation of [a hos­tile work] envi­ron­ment should be held liable regard­less of whether the envi­ron­ment was cre­ated by a co-employee or a non­em­ployee, since the employer ulti­mately con­trols the con­di­tions of the work envi­ron­ment.” Lockard v. Pizza Hut, 162 F.3d 1062, 1073–74 (10th Cir. 1998). Crit­i­cally, Ms. Richards has a duty to report the sex­ual harass­ment she endured at the tech­nol­ogy con­fer­ence to Send­Grid. “[T]he law against sex­ual harass­ment is not self-enforcing and an employer can­not be expected to cor­rect harass­ment unless the employee makes a con­certed effort to inform the employer that a prob­lem exists.” Shaw v. Auto­Zone, Inc., 180 F.3d 806, 813 (7th Cir. 1999).

The cen­tral ques­tion in this mat­ter is whether Ms. Richards’s tweet and blog post con­sti­tuted pro­tected oppo­si­tion to unlaw­ful dis­crim­i­na­tion. No magic words are required to qual­ify as pro­tected oppo­si­tion, and the employee must only con­vey to the employer her con­cern that the employer has engaged in an unlaw­ful employ­ment prac­tice. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Accord­ing to the Equal Employ­ment Oppor­tu­nity Com­mis­sion (EEOC), Ms. Richards’s tweet and blog post are most likely pro­tected conduct.

Pur­suant to the EEOC’s com­pli­ance man­ual con­cern­ing retal­i­a­tion which has been around since long before the cre­ation social media, “[a] com­plaint or protest about alleged employ­ment dis­crim­i­na­tion to a man­ager, union offi­cial, co-worker, com­pany EEO offi­cial, attor­ney, news­pa­per reporter, Con­gressper­son, or any­one else con­sti­tutes oppo­si­tion. Oppo­si­tion may be non­ver­bal .…” Pur­suant to the United States Supreme Court’s direc­tive, the EEOC’s inter­pre­ta­tion of Title VII is to be given “great def­er­ence” by the courts. See Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971). If com­mu­ni­cat­ing work­place dis­crim­i­na­tion to a “news­pa­per reporter” or “any­one else” is pro­tected con­duct, so is tweet­ing and blogging.

Send­Grid is on the wrong side of this sex­ual harass­ment and gen­der dis­crim­i­na­tion issue. SendGrid’s treat­ment of Ms. Richards truly embod­ies the “good old boys’ club” men­tal­ity pro­scribed by our civil rights laws. More than a half cen­tury since the pas­sage of Title VII of the Civil Rights Act of 1964, Send­Grid remains in the dark ages in its treat­ment of female employ­ees who coura­geously oppose sex­ual harass­ment in the heav­ily male-dominated indus­try of tech­nol­ogy. What Send­Grid fails to under­stand is that sex­ual harass­ment is nasty, and its employ­ees need not expose it qui­etly or pri­vately. There is no polite­ness line that should or should not be crossed when protest­ing work­place dis­crim­i­na­tion. We applaud Ms. Richards’s efforts to vocif­er­ously oppose sex­ual harass­ment. Hope­fully a more pro­gres­sive and sophis­ti­cated tech­nol­ogy com­pany will appre­ci­ate your actions — and give you a bet­ter job.

UPDATE: Eric B. Meyer wrote an excel­lent legal analy­sis of this issue as well.