Employers can’t discipline employees for filing discrimination claims with state or federal agencies. That’s retaliation. But what if an employee is spouting off to co-workers and customers about how he’s suing to “get” the company?
If the employee simply is criticizing the company and isn’t discussing the substance of his lawsuit—such as his belief that the company had been discriminating—chances are what he is doing doesn’t amount to protected activity. That means you could punish him without being liable for retaliation.
Recent case: James Fox worked for a beer distributor. It demoted Fox from his supervisory position shortly after his 40th birthday. The company based Fox’s demotion on his subordinates’ contention that he lacked good communications and customer service skills.
Fox applied for several promotions, but was rejected. He then sued the company, alleging age discrimination. His supervisors also counseled him that if the company got any more customer complaints, he would be fired.
The company then learned from a customer that Fox had announced during a visit that he had a $10 million lawsuit against his employer, and added, “It was something that would get their attention.” The same customer said Fox was “always talking about his lawsuit.”
The company fired Fox, explaining, “Jim has expressed his malcontent to employees and customers. His poor attitude impedes … a positive work environment and good customer relations.”
Fox sued, alleging retaliation for protected activity. But the 6th Circuit Court of Appeals rejected his claims. It explained that protected activity may include discussing a lawsuit and the employment conditions behind it, but not the sort of general talk Fox had engaged in. If he had specifically mentioned age discrimination, that might have been another matter. (Fox v. Eagle Distributing Company, No. 07-5203, 6th Cir., 2007)