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Where the Sun Don't Shine...

August 2013

By: Alan E. Seneczko, Esq.

Does participation in the mediation process create a privilege to misbehave? Is it retaliation to terminate an employee who does? The Seventh Circuit recently addressed these questions and issued a decision that should be welcomed by abused employers everywhere; and it said "no."

In Benes v. A.B. Data Ltd., Case No. 13-1166 (7 th Cir. 2013), an employer and an employee who charged the company with sex discrimination participated in a formal mediation session conducted by the EEOC. The EEOC separated the parties into two rooms, and the mediator shuffled between the rooms relaying offers and conducting settlement discussions. In response to a settlement offer he believed was much too low, the employee stormed into the employer's room and loudly said, "You can take your settlement offer and shove it [where the sun don't shine] and fire me and I will see you in court." Shortly thereafter, the employer "accepted [the employee's] counterproposal" and fired him. Naturally, the employee then sued the company for retaliation, claiming he was terminated for participating in the EEOC's proceedings.

The court rejected his claim, finding that the conduct at issue was not protected, and that allowing such misconduct to occur during the mediation process would undermine the value of mediation: "Allowing a sanction against a person who by misconduct wrecks a mediation will promote the goals of [the anti-retaliation provisions of Title VII]." The court further observed that conduct that would otherwise result in termination if it occurred outside of the mediation process does not gain protection simply because it occurs in the context of mediation.

Common sense can be quite refreshing.

Questions? Call Attorney Alan E. Seneczko of Wessels Sherman's Oconomowoc, Wisconsin office: 262-560-9696 or email him at alseneczko@wesselssherman.com.