Here’s a little Friday quiz for you — no grading, and answers appear below — on the subject of retaliation.
After you take the quiz, stay tuned for the story that inspired me to write about this.
1. Approximately how many labor and employment laws have anti-retaliation provisions?
A. All of them
B. Three – Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act
C. All of the federal anti-discrimination statutes
2. TRUE OR FALSE: As an employer, you can be liable for retaliation after the employment relationship ends.
3. Which of the following would be considered “legally protected activity”?
A. Complaining to your boss about discrimination or harassment in the workplace
B. Filing a charge of discrimination
C. Cussing out and hitting your boss because she’s making you do your job
D. Spending all day at work on the phone with your lawyer talking about the discrimination lawsuit you want to file against your employer (and not doing any work)
E. All of the above
F. A and B.
4. TRUE OR FALSE: An “adverse employment action” has to be something really bad, like a termination, demotion, or pay cut.
5. Why are retaliation cases so tough for employers?
A. Retaliation cases are on the EEOC’s “hot” list
B. It’s hard to be nice to somebody who has filed a charge against you or sued you
C. Because employers often try too hard to be “nice” when they should be documenting and constructively handling performance and behavior issues . . . and if they wait to start until after they get a charge, it will look like retaliation
D. All of the above.
(Answers at the end of this post. Even though you probably got them all right.)
What brought that on? The case of John Ray v. Ropes & Gray
A court decision came out last Friday in a race discrimination/retaliation lawsuit that was filed by an associate who didn’t make partner at the law firm of Ropes & Gray in Boston. His discrimination allegations sounded pretty bad to me — he claimed that he was called “the token black associate” by one partner and that partners — plural — used the “N” word. But the EEOC and a federal judge in Massachusetts both agreed that he had not been a victim of discrimination.
However, both the EEOC (reversing an earlier decision in the law firm’s favor) and the judge agreed that there was evidence of retaliation. Crazy story.
Ropes & Gray had a nine-year-up-or-out policy — if you didn’t make partner in nine years, you had to look for another job. John H. Ray, III, an African-American lateral hire, apparently didn’t cut it and apparently was not going to be stealing any clients. When he reached year nine, they told him he was “out,” not “up,” and told him he could stay in his office and look for another job for a while.
Mr. Ray went to a couple of partners and told them his story, and they were both sorry. He asked them to provide letters of reference for him, and, being nice guys, they both agreed.
Then Mr. Ray sent a draft EEOC charge to the firm and demanded $8.5 million.
Can you understand why these two Mr. Nice Guys may have suddenly become reluctant to give John Ray a letter of reference? Me, too.
So, no reference.
Then, Mr. Ray, a graduate of Harvard Law School, contacted the school and said that it should end its dealings with Ropes & Gray because Ropes & Gray was a discriminatory law firm. Ropes & Gray was willing to let this go, until . . .
. . . a prominent (and fun) legal website, Above the Law, found out about the Harvard contact. That’s when the fur really began to fly.
“You wanna piece of me? You got it, baby!”
Ropes & Gray sent Above the Law a copy of the EEOC’s first determination (100 percent in favor of Ropes & Gray). The EEOC determination was long and contained very detailed information about Mr. Ray’s job performance and his alleged workplace behavior. Above the Law published the entire determination with all of these gory details.
Mr. Ray then told Above the Law about the second EEOC determination (still finding in the law firm’s favor on the discrimination claim but finding in John Ray’s favor on the retaliation claim) and wrote a lengthy rebuttal, which ATL duly published.
In 2011, Mr. Ray filed suit against Ropes & Gray in federal court.
Last week, the court ruled on Ropes & Gray’s motion for summary judgment, granting it as to the discrimination claim but denying it as to the retaliation claim.
On the retaliation, the court had a problem with the two partners’ willingness to write John Ray letters of reference and their sudden change of heart (AFTER HE DEMANDED $8.5 MILLION!!!). The court also had a problem with the firm’s release of the EEOC determination letter to Above the Law. Although the determination was a matter of public record and not defamatory, the court said, it was still up to a jury to decide whether the firm’s disclosure of it was retaliatory.
On the other hand, the court found that it was not retaliatory for the firm to order Mr. Ray to vacate his free office after he sent his demand for $8.5 million. (The firm wisely paid him his full salary.)
From my perspective, Ropes & Gray should have won summary judgment on the retaliation claim. I have two bones of contention with the court:
Bones of contention.
Good deeds should not be punished. Some people commenting on this story said that the two partners should never have agreed to write letters of reference in the first place. That is probably true, and with benefit of hindsight it is definitely true, but get real. If you wouldn’t offer to do that for someone you liked who is losing his job, then you have a heart of stone.
I also don’t blame these partners one bit for backing off once they found out what Mr. Ray was planning to do. If they’d gone ahead with the letters, you can bet Mr. Ray would have used those letters against the firm in his lawsuit. (“See? I was a great performer, and these guys admitted it. This proves that the firm discriminated against me.”)
With 20-20 hindsight, what could the partners have done differently? Maybe they should have written the letters, but with some careful drafting. One of my own firm’s founding fathers is said to have written a letter of recommendation for an associate he wasn’t impressed with as follows: “If you’re looking for an attorney with Mr. X’s qualifications, you will never find anyone better than Mr. X.” (Awesome!) OK, maybe we aren’t all that clever, but we do “truthful-but-positive” letters of recommendation all the time. E.g., “Mary was our Chief Operating Officer from January 1, 2013, through April 1, 2013. She never stole, and she always showed up as scheduled.”
Airing dirty laundry, or “just because it’s not defamatory doesn’t mean it’s not retaliatory.” I had more trouble deciding how I felt about the firm’s decision to send the EEOC determination to Above the Law, but I ended up on the firm’s side here, too. Mr. Ray’s complaint had 85 paragraphs of detailed allegations, and Ropes & Gray is a big, well-respected law firm, so of course his lawsuit received a lot of attention in the legal media. According to news reports, Ropes & Gray sucked it up until Mr. Ray went to Harvard Law School and told them to stop letting Ropes & Gray recruit its students. Apparently, Ropes & Gray was still cool until the Harvard story caught the attention of Above the Law.
I do have a problem with the firm’s disclosing the first determination letter but apparently not mentioning the fact that the EEOC reversed itself on the retaliation claim. If that is what happened – but I don’t have enough information.
Otherwise, I don’t consider it “retaliatory” for the firm to want to protect its reputation by releasing, in pure self-defense, a document that is a public record. Mr. Ray had a right to file a charge and a lawsuit, but once he started bad-mouthing Ropes & Gray to Harvard Law School, he opened a door that he shouldn’t have opened.
Close call, but I side with Ropes & Gray.
With 20-20 hindsight, what could the firm have done differently? Generally, documents filed with a court are absolutely privileged, and presumably that would apply to retaliation claims, too. So Ropes & Gray probably could have the content of the EEOC determination in one of its court pleadings or attached a copy. If it had handled it this way, Above the Law still would have read and reported on it, but the firm would have been in the clear. (At least, I think so.)
As it is now, Mr. Ray’s retaliation claim will go to a jury. Meanwhile, folks, be very, very careful in dealing with employees and ex-employees who file charges against you or sue you. It is easy to get tripped up. When your attorney tells you to take the high road, there’s a reason for it.
Answers to retaliation quiz: 1.A (“All of them”); 2.TRUE; 3.F (“A and B”); 4.FALSE; 5.D (“All of the above”).