Another Advertising Agency Courting the EEOC: Have They Ever Heard of Retaliation?

What is with the advertising agency industry lately?

I wrote here about JWT’s problems after employees sued it and its CEO for sexual harassment.

Now, the Wall Street Journal just reported that a former RAPP executive, U.S. President Gregg Anderson, filed a lawsuit against the marketing agency for “wrongful termination” after he complained about alleged sexual harassment by RAPP’s chief executive officer.

Good for RAPP, right? This executive must not be a team player, right?

Wrong.

Once an employee complains about discrimination to HR, if the employer terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination.

Telling management about unlawful workplace discrimination is “protected activity” under Title VII of the Civil Rights Act of 1964 (“Title VII”).  Title VII contains an anti-retaliation provision making it unlawful for an employer to subject an employee to an adverse action when that employee has opposed any practice which is an unlawful employment practice under Title VII.

The EEOC considers “opposition” to be complaining to anyone about alleged discrimination suffered by oneself OR others!

Bottom line: it is “wrongful termination” under the various anti-discrimination statutes for an employer to fire an employee who complains of unlawful discriminatory behavior.

Last year, the federal appeals court for the Fourth Circuit underscored this point in DeMasters v. Carilion Clinic, 796 F.3d 409 (2015). In that case, the employer terminated the plaintiff because he acted “contrary to his employer’s best interests,” didn’t take a “pro-employer side,” and compromised the employer by supporting an employee’s sexual harassment claim and criticizing how the employer handled the investigation.

The appeals court determined that the “opposition” clause protects an employee’s course of conduct, as a whole, when the (often HR) employee communicates to the employer a belief that the employer has engaged in discrimination, and concerns subject matter that is actually unlawful under Title VII, or that the employee reasonably believes to be unlawful.

Takeaway:  Employers take note— avoid a potentially costly and intrusive EEOC investigation as well as embarrassing and expensive litigation.  If employees report sexual harassment or any other form of discrimination, they are helping you avoid liability. Don’t exacerbate the matter and increase your potential liability by taking an adverse action against that employee by firing him or her.