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:
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:
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.