It is understandable that when an employee suffers discrimination at work, things may get a bit heated. As the EEOC has noted in Odilia (discussed below) employees accusing their supervisors of harassment and discrimination inherently involves confrontation, so it would have been difficult for Complainant to avoid a
That shouldn't by itself strip employees of their rights. When an employee gets a little loud about discrimination they are experiencing, the yelling may be a bad idea - and it will certainly hurt their case - but they should still have some protection against retaliation unless their conduct is objectively too extreme.confrontational and disrespectful
tone.
As Professor Carle has written, to expect perfect decorum when reporting a traumatic event like discrimination is not only logically untenable but also undermines the objectives of Title VII.
It creates perverse incentives, resulting in employers having higher chances of prevailing in discrimination suits when their conduct is so infuriating that it causes employees to lose their temper.
Angry Employees: Revisiting Insubordination in Title VII Cases,
10 Harvard Law & Policy Review 185 (2016).
In a blog post back in 2020 we talked about yelling and other forms of rudeness that can come up when standing up for worker's rights. That law has changed once again, and this time it has gotten better.
In Lion Elastomers LLC II, 372 NLRB No. 83 (2023), the NLRB reversed the misguided General Motors decision we previously discussed, and reinstated the proper test. Under this test four factors are considered:
So, unless an employee's protected complaint was beyond the pale and unprovoked, it will be illegal retalition to fire the employee for the outburst.
In this way, the Fifth Circuit and NLRB have applied a balancing test which considers all the circumstances. NLRB v. Sw. Bell Tel. Co., 694 F.2d 974, 978 (5th Cir. 1982) (protecting a union shop steward who engaged in an intemperate spontaneous outburst since one outburst had taken place in the context of discussion of terms and conditions of employment, activity protected under Section 7, and that the other had been provoked by the earlier disciplinary action)
The EEOC has also recognized this in its doctrine of per se retaliation protecting federal employees. For example, in Odilia M. v. VA, an employee engaged in confrontational and disrespectful
communications accusing the supervisor of discrimination, and was disciplined for [d]isrespectful conduct, use of insulting, abusive, or obscene language to or about other personnel.
EEOC Appeal No. 0120150311 (Nov. 3, 2016). EEOC held that this was unlawful retaliation per se. It reasoned that a supervisor's discipline that, on [its] face, discourage[s] an employee from participating in the EEO process violate[s] the letter and spirit of the EEOC regulations and evidence[s] a per se violation of the law.
This is so even if the employee complaining had in fact been rude about it.
To be clear, I'm not suggesting that anyone yell or get rude when reporting discrimination. Make no mistake: it is always a mistake to yell or get rude. It will definitely make your case worse or even ruin it if you go off the handle about it at work. Take a deep breath. Be cool. Make your discrimination accusation when you are at your most centered and calm. You might even want to record yourself doing it to protect yourself against false accusations of rudeness.
But if that ship has sailed and things got a little heated, it may not be the end of the world. You still should have some protection against retaliation.
In a blog post back in 2020 entitled The Future of Religious Accommodation and Discrimination, I predicted that the Supreme Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII
by changing the interpretation of undue hardship
for religious accommodation.
Then, in January 2023, the Court took up a case on exactly that issue. Groff v. DeJoy. Argument was held in April and the decision was issued at the end of June.
As I had predicted, the Court unanimously decided that the longstanding view of the circuit courts was wrong. It adopted a far more protective view of religious accommodation.
The plaintiff in the case, Mr. Groff, was a rural carrier associate for the post office and was an observant Christian who did not work on Sunday. Then, when Amazon made USPS start Sunday delivery, Groff's bosses tried to make him run Sunday routes. After a number of disciplinary actions because of this, Groff was forced out of the job.
The statute is clear that religious accommodations must be provided unless they are an undue hardship.
The question was what that means. Prior decisions had suggested that even a de minimis
(latin for itty-bitty
) inconvenience was enough to justify refusing to accommodate. Some courts have even allowed bigoted customer or coworker feelings to qualify as a so-called undue hardship.
The unanimous Court said that undue hardship
means what it says, and that is a real hardship:
i.e. privation, suffering, adversity
which is undue:
i.e. excessive or unjustifiable.
In practice, this means substantial increased costs in relation to [the employer's] particular business,
including the practical impact in light of the nature, size and operating cost of an employer.
And even if the requested accommodation is too burdensome, the employer is also required to consider if there are any other alternatives that might work.
This was a complete transformation of the existing law, and its effects were felt immediately. For example, in September 2023, the Fifth Circuit reversed a decision that it was an undue hardship
for a prison to accommodate a nazarite's uncut hair and beard. Hebrew v. Tex. Dept. Crim. Justice. The prison cited three safety concerns: that contraband could be smuggled in the hair, that gas masks would not fit, and that offenders might use the hair to grab and attack the guard. The Court rejected all three, noting that searching the hair for contraband is not an undue hardship under the Groff test, that medical (but not religious) exceptions were allowed for beards, and that women were allowed long hair. By giving exceptions for disabilities and women but not for religion, the prison was not only giving the lie to its stated safety concerns, it was was also discriminating based on religion.
In short, the door has been opened for real religious accommodations in the workplace. And it's about time, too.
Usually I post explainers about the laws the firm enforces, helping you understand some important concepts and keeping you up to date. Sometimes I write about the firm's philosophy or approach to the practice. This post will be a little different, a little more autobiographical. I have three major numbers to talk about: 100, 10, and 1.
The firm started very small. Having decided at the outset to build almost everything myself - including hand-coding the site from scratch - there was no other way it could have started. But in the early days I was just beginning to pick up cases and had the time to pour into it. The first 24 blog posts came in those initial three months.
As things picked up there were other demands on my time and the posting slowed to some half-dozen entries per year. As the work continued to pile up, I brought on an intake officer turned paralegal, and then, after five years, I brought on an associate attorney. This led to a more even schedule, and the ability to take on more work. Unfortunately for the working people of the state, the demand is certainly there for this work, and the supply of good help is very short indeed.
Things hummed along nicely, and we even prepared to expand further. As of August 2022, we had 99 posts on the blog and even more cases on the docket. But then a few things happened at once. My associate left for the EEOC. My wife had a baby. Two other attorney hiring plans fell through. Waves of support staff turnover came one after the other. And quite suddenly I found myself alone with untested staff carrying a workload designed for three lawyers. And months behind at the starting block.
It was not easy. Long days, longer weeks, and a seemingly endless succession of unbroken months of work. I stopped taking any new cases for a time. Suffice to say, that meant blog post 100 had to wait.
But the firm survived - and more than survived. Now, over a year and a half later, the caseload has returned to normal-ish,
the staff has gotten experience and expanded, and I've developed good internal systems for tracking and executing on our litigation plans that I know can handle the workload we have and then some. We are taking cases again at a sustainable pace, and still have room to deal with schedule changes.
An unexpected side-effect of going through this crucible: The quality of our representation has improved, not just efficiency as would be expected. Quality is currently at the highest level it has ever been. And it is showing in the results, with large jury verdicts and settlements. We recently settled a single-incident, hotly disputed, employment-related claim for $800,000 - despite the fact it was subject to a $1MM cap. Case valuations and results are rising quickly.
So this is the 100th post, made in the firm's 10th year, by its 1st and only attorney. To my clients: I'm very proud of all of you, and I know the tremendous leap of faith it takes to stand up for justice. Thank you for your patience during times when I have been hard to reach as I was working on other matters. Thank you for trusting me to bring the case home for you. And know that as long as I can do this work, I will never stop striving to improve.
I am honored to have been nominated by my peers to serve as a member of the Executive Committee of the Labor & Employment Law Section of the Mississippi Bar. The Bar helps maintain a collegial and professional relationship among attorneys, and provides continuing legal education to the profession.
Today, as I participated in my first meeting since my nomination, looking around the room I knew every one of the people there (save one) from having opposed them in court. It further impressed on me the honor of that nomination, knowing that I was selected by the very people with whom I had fought bitterly in case after case. It is a mark of the mutual respect and collegiality of the Bar that they selected me to serve with them on this committee.
To give another example, I once sued an administrator who was a former Justice of the Mississippi Supreme Court, and even had to depose him. He had called my client a liar and fired her. My claim was that he violated her civil rights. It was tense.
Later, he was assigned to sit as a judge over one my cases. The opposing party brought up that I had sued him and tried to have him recused. He declined. And he presided fairly over the case. As he said in his order declining to be recused: it made no difference to me as to Mr. Dillard because I have always respected him as an ethical, diligent attorney who simply represents the interests of his clients.
As Shakespeare said, good attorneys will strive mightily, but eat and drink as friends.
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First provide the firm with your name, and the name of the person you are making claims against. This allows the firm to check for such conflicts of interest. Until you receive confirmation that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.
Once we have confirmed there is no conflict, you may discuss your matter with staff in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.
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