The employee had declined to sign the release as part of her layoff severance package and subsequently filed discrimination charges with the EEOC. Then the company conditioned her severance benefit receipt on her withdrawal of the EEOC charges. According to the court decision, the broad language of the release was “facially retaliatory.”

An employee who had delivered confidential, proprietary documents to her lawyers in a class-action employment lawsuit against the company was properly fired for violating the company’s privacy policy and code of conduct, the Sixth Circuit rules.

The worker was a claims adjuster who worked from home, and who subsequently joined in a sex discrimination lawsuit against her employer. The plaintiffs attorney had requested “any” documents related to her employment or which might be “remotely helpful” to the case, and the worker sent material she believed was relevant to the case, including confidential information about the company’s policyholders. The company’s policies expressly prohibited the disclosure of confidential information, including personal information about policyholders, and subsequently terminated the employee when the incident came to their attention. When she sued the company for retaliation, a lower court found that she was not engaged in a protected activity when she released information concerning the policyholders.

On appeal, the Sixth Circuit agreed with the district court, observing that if the documents that the worker gave to her lawyers “had been directly or even indirectly relevant” to the claims raised in the discrimination lawsuit, “her delivery of those documents would clearly constitute participation in that lawsuit.” The Court outlined six factors to determine whether a release of confidential documents was reasonable: “(1) how the documents were obtained, (2) to whom the documents were produced, (3) the content of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct, (4) why the documents were produced, including whether the production was in direct response to a discovery request, (5) the scope of the employer’s privacy policy, and (6) the ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.”

The Court says that “concluding that [her] conduct here is protected participation in the [discrimination] lawsuit would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.” Niswander v. The Cincinnati Insurance Co.

An assistant manager who claimed he was fired because he was black, and for complaining about the firing of another employee because she was black, can sue for retaliation under Sec. 1981 of the Civil Rights Act of 1866, the U.S. Supreme Court rules in a 7-2 decision.

Sec. 1981, referred to as the “equal contract rights” provision, requires that all persons in the U.S. have the right to make and enforce contracts “as is enjoyed by white citizens.” The question before the Court was whether the provision also encompasses retaliation against a person who has complained about another person’s contract-related “right.” Citing its prior decisions in cases related to property ownership, as well as Congressional intent in broadening the protections of the law, the Court majority holds that Sec. 1981 covers a private cause of action against retaliation. It affirms the Seventh Circuit’s ruling in the case sending it back for a trial. CBOCS West Inc. v. Humphries

Although a Wal-Mart worker made a protected complaint about sexual harassment to the company, she was not fired in illegal retaliation after the investigation concluded that she was the source of sexual rumors about herself and the accused male employee, a federal judge in Oklahoma rules.

The former employee had accused the male co-worker of making sexually suggestive remarks to her, but did not immediately complain to management as required by company policy. When she subsequently did complain, Wal-Mart promptly responded with an investigation and corrective action, the Court finds. As a result of the investigation, the company found that the complainant was actively spreading sexually-related gossip and rumors about her and the accused employee. Since the complaining employee was already at the last step of the company’s discipline procedure, she was terminated for the infraction.

The former employee could not prove that the company had a mixed motive for terminating her, or that the company was using the infraction as a pretext for her discharge, the Court rules in dismissing her case. Barley v. Wal-Mart Stores East LP

A driver who complained about national origin discrimination to his employer, then subsequently terminated for sleeping on the job, was not discharged in retaliation for his complaints, the Eighth Circuit says.

As a result of a work injury, the employee was under doctor’s orders to perform stretching exercises upon the onset of back pain or after performing physical labor. During one assignment which caused him back pain, he sat down to rest with his head on his forearms, pushing his back up. A co-worker observed him, believed that he was sleeping, and reported this to a manager. The manager observed him for three minutes, said the employee’s head was down and eyes closed and that he never moved until the manager woke him up. The employee claimed that he saw the manager’s shoes, and explained that he was stretching, not sleeping.

After he was terminated, the driver charged that the company had used the incident as a pretext to retaliate against him for his prior complaints. The Court says that in determining pretext, “the key question is not whether the stated basis for termination actually occurred, but whether [the company] actually believed it to have occurred.” There was no factual dispute about the employer’s “good faith belief” that he was sleeping on the job, rules the Court in dismissing the case. Soto v. Core-Mark International, Inc.

The U.S. Supreme Court has agreed to review whether the anti-retaliation provision in Title VII of the 1964 Civil Rights Act protects a worker from being dismissed because she cooperated in an employer’s internal sexual harassment investigation. The case at issue is a Sixth Circuit decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee holding that the employee was not engaged in a protected activity, and that participation in an internal investigation initiated by the employer in the absence of any pending Equal Employment Opportunity Commission charge was also not protected.

The Occupational Safety and Health Administration has issued fact sheets on whistleblower protection for employees in the trucking and transportation industries. The fact sheets are also useful for industry employers to review for coverage, what are considered to be protected activities, and what would constitute unfavorable personnel actions under federal law.

An employer who successfully sued a former worker for breach of contract is ordered to pay damages to the ex-employee because the lawsuit was in retaliation for his whistleblower claim, rules a Dept. of Labor administrative law judge.

The complainant was employed as a commercial truck driver, and during the course of his employment, filed various claims against the company including under the Occupational Safety and Health Act, a National Labor Relations Board claim, employment discrimination charges, and workers’ compensation claims. As a result of his complaints, the company entered into a settlement agreement with the worker, in which he promised not to pursue future claims against them. However, at the time of the settlement, the worker still had a pending claim being investigated by OSHA, which he attempted to withdraw. The company subsequently sued him for breach of contract for his failure to release the claim, and ultimately was awarded $187,305.30. He then filed the retaliation claim. The ALJ finds that the company “wanted to make an example” of the worker, in effect “showing its employees that it was not worth the effort to go against the company because of the devastating effects on their personal lives and financial state that would ensue.” The ALJ orders the company to pay more that $232,000 for his retaliation claim, which includes the amount he was ordered to pay the company for the breach of contract, his attorney fees, and emotional distress damages. Harrell v. Sysco Foods of Baltimore

An employee who frequently complained about his work hours and lack of overtime pay, then subsequently told to accept his working conditions without complaining, resign, or be terminated has stated a claim for constructive discharge in retaliation for asserting his Fair Labor Standards Act right to overtime pay, a federal district court rules.

The Court says that it does not find that the overtime the employee worked and the lack of overtime pay for those hours to be “objectively intolerable.” However, the threat to terminate him if he did continue to assert his right to FLSA overtime pay “would be objectively intolerable to a reasonable person,” the Court observes, and that a reasonable person in the worker’s position would have felt compelled to resign. Ellis v. Yum! Brands, Inc.

A 43-year-old beer salesman terminated for telling a customer about his ten million dollar lawsuit against his employer was not engaging in a “protected activity” under the Age Discrimination in Employment Act, the Sixth Circuit rules.

Prior to his dismissal, the employee had filed age discrimination charges with the Tennessee Human Rights Commission and state court. He subsequently was placed on a final warning about customer complaints concerning his work. When his supervisor checked on his performance with a customer, the customer stated that the employee was “very vocal” about suing the company and “how upper management is out to get him.” Since the customer said that the employee was “always” talking about his lawsuit, the company interpreted this to be a customer complaint, and fired the employee.

The Sixth Circuit says that in order for the employee’s comments to be protected under the ADEA, he “must have referenced alleged acts of age discrimination” by the company. “An employee may not invoke the protections of the Act by making a vague charge of discrimination. Otherwise, every adverse employment decision by an employer would be subject to challenge under either state or federal civil rights legislation simply by an employee inserting a charge of discrimination,” the Court said. Fox v. Eagle Distributing Co.