Does Telling an Employer to Take a Settlement Offer and “Shove It Up Your @$%&!” Constitute Protected Activity Under Title VII?

No – the Seventh Circuit Court of Appeals recently clarified that telling an employer to take a settlement offer and “shove it up your @$%&!” is not protected by Title VII.

In Benes v. A.B. Data Ltd., Case No. 13-1166 (7th Cir., July 26, 2013), the plaintiff filed a charge of discrimination against his employer for sexual harassment after working there for only four months.  While still employed with the company, the parties engaged in mediation supervised by the EEOC.  After the initial joint session, the plaintiff and the employer were placed in separate rooms so that the EEOC mediator could serve as a go-between.  After receiving an offer that he considered to be too low, the plaintiff stormed into the room occupied by the employer and said loudly: “You can take your proposal and shove it up your @$%&! and fire me and I’ll see you in court.”  Within an hour, the employer accepted the plaintiff’s counter-offer and fired him.

In response to his termination, the plaintiff sued his employer for violating the anti-retaliation provision of Title VII.  The anti-retaliation provision of Title VII prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”  42 U.S.C. § 2000e-3(a).  The employee must be able to show that he or she would not have suffered the adverse employment action “but for” the protected activity.

In Benes, the Seventh Circuit Court of Appeals held that the plaintiff’s conduct was not protected by Title VII and, therefore, could not support a retaliation claim.  The Court held that the plaintiff’s violations of the mediator’s rules was a legitimate non-retaliatory reason for the termination.  The court explained that “[m]ediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.”  In addition, the court noted that engaging in protected activity under Title VII does not insulate an employee from being discharged for conduct that would otherwise justify termination.

Takeaway:  The Benes case is a good reminder that engaging in protected activity under Title VII – by filing a charge of discrimination, for example – does not give an employee license to engage in conduct that would otherwise justify termination.  Telling an employer to take a settlement offer and “shove it up your @$%&!” meets that standard.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on September 10, 2013, in Discrimination and Harassment, Retaliation and tagged . Bookmark the permalink. Leave a comment.

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