Sunday, July 18, 2010

The Intolerable Co-Worker

by David McCarthy

We get a remarkable number of calls from persons who have inflated notions of "hostile environment harassment." Usually the caller is new to the job in question and the complaint is that a co-worker is curt, abrupt, abrasive, indifferent, quarrelsome, and on and on. Eventually the term "hostile environment" enters the conversation. Invariably the caller displays an unduly broad (and erroneous) notion of "hostile environment harassment."

It began 24 years ago when the U.S. Supreme Court expanded to scope of gender-based harassment from the so-called quid pro quo variety to the "hostile environment" variety. In order for the "hostile environment" to be actionable it must have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment and it must be connected to one of the forms of discrimination that is prohibited, e.g., race, sex, national origin, age, disability.

Quite recently a caller who had been let go after fewer than 60 days on the job had just received from EEOC (Equal Employment Opportunity Commission) her right to sue letter and a notice that, after investigation, EEOC was unable to conclude that the caller had been the victim of workplace discrimination. She brought her charges on a theory of race-based discrimination, and it soon became clear why: Both of the "villains" in her story were women. One was a supervisor and the chief complaint as to her was that she refused to take sides in an ongoing, low-grade clash between the caller and a co-worker with whom the caller did not get along.

From what was described to me, I concluded that the conduct complained of did not rise beyond a clash of personalities. Apparently EEOC had reached much the same conclusion after a long investigation. The caller was free to go to the next step, that is, file suit; but the wisdom of doing so in light of the tepid conclusions of the achingly-sensitive EEOC was far from clear.

Friday, July 16, 2010

Can Blogging Get You Fired?

by David McCarthy

Can blogging about your job or your boss get you fired?


Illinois is an at-will State. Either party to the employment relationship can end it at any time for any reason.

By and by exceptions have emerged as to the right of the employer to end the employment relationship. To fire someone after she has complained of discrimination because of race, sex, age, or disability is to run the risk of liability for "retaliatory discharge."

As for blogging about the job or the boss, it is tempting to suppose that the constitutional guarantees of free speech diminish or eliminate the right of the employer to fire the blogger. But it is not so.

First, the constitutions regulate only the relationships between individuals and the national and state governments, not the relationships between individuals and private employers.

Second, the Illinois Supreme Court has expressly rejected the proposition that a claim for retaliatory discharge can be grounded on free speech. There is an exception when the free speech is of the "whistleblower" variety.

Otherwise, you can blog to your heart's content and no judge will prohibit it. But you take what comes, and if a "pink slip" is what comes, you might as well put all your attention on looking for a new job because you are going nowhere with a claim of retaliatory discharge.