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Adverse Verdict In Retaliation Case Is A Grim Reminder For Employers

Published by on March 12, 2010

A recent decision by the U.S. Court of Appeals for the Ninth Circuit affirming a jury’s findings that several discriminatory statements made by supervisors, some of which were reported to a human resources representative, were sufficient evidence that the employee was fired in retaliation for his complaints is worth reading as a reminder that employers […]

A recent decision by the U.S. Court of Appeals for the Ninth Circuit affirming a jury’s findings that several discriminatory statements made by supervisors, some of which were reported to a human resources representative, were sufficient evidence that the employee was fired in retaliation for his complaints is worth reading as a reminder that employers must properly investigate, respond to, and document all complaints of discrimination in the workplace.  The case was originally brought by the EEOC as a discrimination and retaliation case, but the jury only returned a verdict in favor of the plaintiff on the retaliation claim.  More after the break.

Youssef Bouamama worked for Go Daddy Software, Inc. (“Go Daddy”).  Bouamama was a Moroccan-born Muslim who began his employment with Go Daddy shortly after the 9/11 terrorist attacks.  Between December 2001 and February 2002, Bouamama’s supervisor questioned him about his background and religion after overhearing Bouamama speaking French.  Bouamama was promoted in July 2002, and at that time complained to a human resources representative about the questions he had been asked several months prior.  At some point, Bouamama also heard this supervisor make derogatory comments about Muslims, but did not report these comments to anyone at Go Daddy, citing a culture where you could be fired for complaining.

In April 2003, a new manager re-organized Bouamama’s department.  He was informed that his position was to be eliminated, but that he could apply for a position in the newly-structured department.  Several days after receiving this notice, the new manager asked where he was from, and whether he was Muslim.  Bouamama testified that the manager responded, “You know, you’re lucky that I like you.”  He reported this exchange to the HR rep. that same afternoon.  On April 9, Bouamama interviewed for a new position, but was not hired.

According to the Court, Bouamama’s complaints were enough to allow a reasonable person to conclude that the statements went beyond “isolated incidents.”  To constitute protected activity, a court must find that the employee “reasonably believes” he is reporting conduct that violates Title VII.  Supervisor comments that Bouamama overheard, but did not report, could be considered as part of the context in which the reported comments were made, and were relevant to the reasonableness of Bouamama’s belief.  The jury awarded Bouamama $5,000 for mental and emotional pain and suffering and $135,000 for lost earnings. The jury also awarded $250,000 in punitive damages.

The dissenting justice called the trial’s result a miscarriage of justice, writing that “[n]o rational person could have thought that two conversations with two different men in different contexts and at widely separated times constituted a pattern of discriminatory conduct by Go Daddy.”

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