Discrimination Claims on Glassdoor Result in Firing, EEOC Lawsuit

NLRB rejected plaintiff’s claim but EEOC advances it

By Allen Smith, J.D. Jun 15, 2017
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​The federal government is suing a company that fired a worker after he accused his employer of discrimination in a review on Glassdoor.com—raising the question of when discharge for online remarks constitutes unlawful retaliation, which is the leading type of claim filed with the Equal Employment Opportunity Commission (EEOC).

Employers "need to be very thoughtful" when responding to employee digital conduct to avoid charges of retaliation, said Amber Dodds, an attorney with Bracewell in San Antonio.

"The whole area of digital communications by employees is a moving target, and the law in this area is developing under the NLRA [National Labor Relations Act] and under Title VII" of the Civil Rights Act of 1964, said Jim Kizziar Jr., also an attorney with Bracewell in San Antonio.

Scathing Glassdoor Post

The EEOC announced May 24 that it is suing IXL Learning Inc., an educational technology company, for firing a transgender employee who posted a negative review about the company on Glassdoor, a job recruiting and ratings website. The EEOC maintains that the firing was in retaliation for the employee's review.

IXL fired Adrian Scott Duane, a transgender analyst who helped design math tests and digital math training, within minutes of confronting him about the negative review.

Believing that IXL was discriminating against him by denying him an accommodation request, Duane wrote this anonymous post on Glassdoor: "If you're not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball—then you're likely to find yourself on the outside. … Most management do not know what the word 'discrimination' means, nor do they seem to think it matters."

Duane had asked to telecommute so he could recuperate from gender confirmation surgery—a request that initially was denied but ultimately was granted. Duane felt that IXL treated his request differently from similar requests by two co-workers who wanted to telecommute because of issues regarding their opposite-sex spouses.

Before the surgery, Duane telecommuted for six weeks and had performance problems during this period—namely, decreased productivity and organization, Dodds said. After two months of paid leave to have and recover from surgery, he asked to work half the time from home and the other half onsite, she added.

Duane's supervisor tried to find a solution other than telecommuting, including leave.

While Dodds said the supervisor was simply engaging in the interactive process, Duane said the supervisor's response was illegal and told his employer that he was hiring an attorney.

At that point, the supervisor brought Duane's request to more-senior managers, and it was then that Duane made his post on Glassdoor, Dodds said.
Duane scheduled a meeting with the CEO, during which the CEO said that his telecommuting request would be granted, she noted. But at the end of the meeting, the CEO and Duane spoke about the Glassdoor post and Duane confirmed that he had written it. The CEO—who said this demonstrated poor judgment and prevented the CEO from trusting Duane—fired him because of the post, she added.

NLRA Claim Sunk, EEOC Sues on Behalf of Employee

Duane filed two types of claims: one with the National Labor Relations Board (NLRB) and one with the EEOC.

The NLRB administrative law judge (ALJ) ruled for IXL on the NLRA claim, distinguishing Glassdoor from traditional social media sites where people are there to talk with one another. Online discussions between employees on social media sites like Facebook may constitute protected concerted activity under the NLRA. Posts that are not intended to be read by co-workers and thus aren't intended to engage group discussion are not considered concerted activity. The ALJ said that because the anonymous post was a personal attack against the employer and designed to hurt the employer's recruiting efforts, it wasn't intended to prompt group discussion like a post on Facebook might generate.

[SHRM members-only HR Q&A: What are the advantages and disadvantages of social networking sites? What should we include in our policy?]

Duane's claim with the EEOC was more successful. He alleged that he'd engaged in legally protected activity that resulted in an adverse action. Protected activity might be the filing of a charge of discrimination, participation in an employer investigation or "oppositional activity," Kizziar noted. "Oppositional activity must be reasonable in content and in its form," he said. "The question here is whether it is reasonable in form to post on a public website in an anonymous manner before complaining to the employer."

The EEOC is suing IXL for retaliation. "While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant," said EEOC trial attorney Ami Sanghvi. "If an employee reasonably believes that illegal discrimination occurred, the EEOC will vigorously defend that worker's right to raise the issue, whether they do so by filing a charge with our agency, notifying company management or posting in a public arena such as Glassdoor."

Jeffrey Wilson, an attorney for IXL, noted that the EEOC dismissed Duane's claims that the company denied him a reasonable accommodation and fired him because he is transgender. As for the retaliation claim, Wilson said, "The EEOC's lawsuit is a disappointing overreach by a federal agency based upon disproven allegations." And IXL Learning CEO Paul Mishkin said in a statement, "During Scott's time at IXL, neither I nor Scott's managers knew that he was transgendered, and IXL granted every request for time off or modified work schedule. His gender identity and the accommodations IXL made at his request were not factors whatsoever in his termination."

Kizziar said that if the court in the EEOC case rules in Duane's favor, it could open the door for employer responses to employee communications on more types of websites to be considered retaliatory, he cautioned.

 

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