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Beware firing for forwarding emails that might support retaliation claim

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in Discrimination and Harassment,Human Resources

Be careful before firing someone for violating email policies that prohibit forwarding company documents to a personal email account. If the forwarded documents support an EEOC or other discrimination complaint, and if the forwarding isn’t “disruptive,” firing the employee could trigger a retaliation claim.

Recent case: George, who is black, worked for Merrill Lynch. He was one of several employees who filed an internal complaint against a supervisor they alleged made “derogatory remarks about age, race and ethnicity.” An investigation concluded that the complaints couldn’t be verified, but Merrill Lynch removed the supervisor anyway.

George didn’t like his next boss, either. He complained that this supervisor had the “old mindset” of seating “the Negro at the back of the bus if he gets out of line.” He didn’t offer specifics.

Other workers began criticizing George for being “unprofessional,” “provoking” and “personally insulting” in emails he sent. When supervisors confronted George about what they saw as inappropriate behavior in the workplace, he filed an EEOC complaint.

Over the next year, George received a raise but complained it was a few thousand dollars less than another employee received. Later that year, a new supervisor gave George a written warning for refusing to turn in weekly reports, perform certain tasks he had been asked to do and for absences for which he had not requested approval.

George then proceeded to forward to his personal account 172 business emails, including attachments. The company computer system flagged his activities. When confronted, he claimed these were for use in his still-pending EEOC complaint.

Then when the company terminated another supervisor, George told everyone who would listen that the manager had been the worst example of management he had ever come across and that his style “sucked.” That was apparently the last straw. Merrill Lynch fired George for his poor behavior and for forwarding business emails and documents to a personal account in violation of company policy.

George sued, alleging he had been singled out for discharge over the emails when other employees who also sent company documents to their personal email accounts were not fired. He also claimed his discharge was retaliation for his prior complaints.

The court dismissed the discrimination claim, reasoning that while others hadn’t been fired for forwarding emails, that wasn’t the only reason George was terminated. The company had plenty of grounds for firing him unrelated to any underlying discrimination.

But George won an important ­victory on his retaliation claim. The court reasoned that, as long as an employee isn’t disruptive while doing so, forwarding company emails to support an EEOC complaint and being fired for doing so might be considered retaliation for filing the complaint. (Bryant v. Merrill Lynch, No. 12-CV-2940, SD NY, 2013)

Bottom line: Get legal assistance before terminating an employee who has forwarded email after filing an EEOC or internal discrimination complaint. While it may seem perfectly reasonable to discipline the employee, the courts may not see the forwarding as any different than printing and carrying the copies home.

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