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.