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She Has a Case

More news on the Adria Richards front. I missed it at the time as I was, ironically, looking up information on retaliation for making sexual harassment complaints for the information of someone close to me. (Propositioned by a manager; written up and hours cut after making the complaint; walked next door and snagged a better job immediately.) Thanks to John Scalzi for the link. My work means this comes as no surprise to me, though.

But that firing could be hard to defend in court, say labor law attorneys.

“It’s a tough one,” said Rob Pattison, a San Francisco attorney who represents employers for the Jackson Lewis law firm. “The law is strong in protecting people who make complaints of harassment, or who participate in an investigation about complaints of harassment.”

That would be Richards’ firing, of course. The firing of the person whose picture was tweeted, even if he were fired only for that event, is probably legal, even as we don’t have the information to tell whether it was warranted. Richards, on the other hand…

Therese Lawless, a San Francisco attorney who represents employees in employment and discrimination cases does not know Richards but said Richards would have a “groundbreaking case” if it went to court because her complaint was made on social media.

“I like it,” Lawless said. “She has a case.”

“They’re basically retaliating against her for speaking out about sexual harassment,” Lawless said. “Oftentimes, employers say their excuse is that ‘We want this person out of the workforce because they don’t fit into the culture, they don’t get along with their co-workers.’ But she’s in a situation where she’s speaking about inappropriate behavior.”

If you take a look at the U.S.  Equal Employment Opportunity Commission’s information on unlawful retaliation, you’ll notice that “Complaining to anyone about alleged discrimination against oneself or others” is protected behavior. There’s nothing there about keeping that complaint small and discreet. There’s nothing there about your complaint drawing unwanted attention or additional illegal harassment to your company. There isn’t even anything there about not, say, going on television and announcing to the world that you’re being discriminated against.

That would be because the types of discrimination covered by the EEOC are considered pervasive enough that reporting instances of discrimination is expected to be met with resistance and denial. The EEOC expects that many people will have to fight to have their claim acknowledged and that they’ll often be complaining about people who are part of the power structure to begin with. For that, they need a wide variety of tools. Cutting them off arbitrarily from some of those tools perpetuates the discrimination.

After all that, the article did offer certain recommendations for dealing with social media in these situations.

Beyond any potential court case over Richards’ firing, it’s the social media aspect of her actions that could hold bigger ramifications for workplace-related behavior among the male-dominated tech culture in Silicon Valley.

“My advice will be: Don’t engage in this kind of behavior because the person sitting next to you or behind you or in front of you has the ability to record on video and audio what you say,” Pattison said. “If that person is offended, your behavior may not be suitable for your continued employment.”

What? That wasn’t the message you expected either? Then maybe you want to spend some time ilstening to the experts before deciding you know everything you need to know about harassment in the workplace.

Related: While we’re on the topic of confident assertions about Richards that just haven’t held up against the evidence, someone dug a bit deeper into Amanda Blum’s post about Richards’ “pattern” of behavior.

Comments

  1. Pteryxx says

    THANK YOU! This point, this FACT, needs to be spread all over the internet and every piece of journalism (pro or amateur) covering the event. It’s absolutely critical.

  2. fastlane says

    the problem is, at that point, most people wouldn’t want to actually be re-hired by that company. I don’t know that most bosses (or whomever was responsible for the firing) could just ‘let it go’. Although a monetary settlement equal to lost wages+, is probably about the best they could hope for in this rather screwed up world.

  3. says

    Some people say that Richards’ tweeting of the information was a violation of some confidentiality rule. I suspect, however, that that rule was meant to keep people from leaking important technical/confidential information, NOT to keep people from talking about asshole behavior by conference participants.

  4. Alyssa says

    The people talking about the confidentiality rule have their facts backwards. The rule was changed after the incident occured as a bit of a rush job.

  5. D. C. Sessions says

    Speaking as someone who has spent his career in the electronics tech world and has, frankly, had a blast:

    There are times I think that the best thing we could do is nuke it from orbit and start over.

    Attending (and for eight years, chairing) major industry association meetings one of the things you notice when looking out over the room is that there are, maybe, 2% with more than one X chromosome [1]. It’s the men’s club effect: with no women present and without an HR department to object to “hostile environment” a lot of men change their behavior. Which in turn helps ensure that there won’t be a huge rush of women to the field.

    The good news and bad news is that this is extreme compared to the workplace. It’s good news because, obviously, women make up more than 2% of the working engineer population. It’s bad news because these conferences represent the senior engineers and management — which are even more slanted against women than the field as a whole.

    [1] ISSCC attendance runs to about 3000 people each year. The “women in engineering” forum — which is an awesome group for networking and tips like the EEOC rule Stephanie cites, meets in one dining room in the hotel restaurant that has a maximum occupancy of about 50. Source: private conversation (2007) with the chair of the group.

  6. mouse says

    What Blum and others are calling “overreaction” really amounts to any reaction that does not prioritize the feelings of the offender. You’re supposed to “work within the community to resolve the problem” says Blum – which seems to mean that you should privately give the offender a chance to knock it off before you expose their offensive behavior to the public or to an authority. If people prefer to handle things that way they’re certainly free to do so — though I would question how often it is a matter of preference as opposed to pressure and survival — but it’s high time to stop telling women that they MUST put the offender’s needs first.

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