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Should Employers Be Liable for Conduct They Cannot Control? Fired for Tweeting About Third-Party Misconduct

For Adria Richards to have a reasonable belief that she experienced unlawful discrimination or harassment, her employer needs to be able to do something about the alleged discrimination or harassment.

March 26, 2013
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Related Topics: Retaliation, Wrongful Discharge, Harassment, Discrimination and EEOC Compliance, Policies and Procedures
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While attending a conference, Adria Richards became offended by two attendees sitting behind telling inappropriate jokes. So, she tweeted her grievance. Then, she blogged about it. Then, her employer fired her. Ars technica has the full details.

If the people about whom Richards complained were co-workers, or they made the offensive comments while in her place of employment, she would have an easy retaliation claim. The perpetrators, however, did not work with Richards, and the only relation between the alleged misconduct and her employment is the coincidence that she had the experience at a conference she was attending on her employer's dime.

The question, then, is whether Richards can claim retaliation based on complaints about which her employer was powerless to remedy?

At his Employer Handbook Blog, Eric Meyer argues that Richards's complaints are protected by Title VII:

If a conference attendee engaged in behavior that amounts to discrimination or sexual harassment, then Ms. Richards's social media complaints could amount to protected activity.

Remember also that even if the law does not technically recognize the actions of which Ms. Richards complained as unlawful discrimination, to engage in "protected activity," she need only have a reasonable belief that what she experienced was unlawful.

I disagree. For Richards to have a reasonable belief that she experienced unlawful discrimination or harassment, her employer needs to be able to do something about the alleged discrimination or harassment. What could Richards' employer have done? It couldn't conduct an investigation. It couldn't discipline the alleged perpetrators. All it could do is alert the conference of the issue and suggest that Richards distance herself from the situation.

Richards did not complain about illegal discrimination. She complained about boorish behavior by two individuals completely outside of her employer's sphere of control. I do not believe Richards' complaints in these circumstances should be protected. To hold otherwise would hold employers accountable for the behavior of the entire world, whether or not the employer has the ability to influence the conduct or punish the misconduct. Title VII's anti-retaliation provisions should not cast this wide of a net.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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