On October 29, 2018, a San Francisco federal jury unanimously found that a Silicon Valley tech company did not commit unlawful retaliation by firing a transgender employee who accused the company of discrimination in a two-star Glassdoor review.
Adrian Scott Duane, a transgender man, alleged on the job review website that IXL Learning, Inc. (IXL), an educational technology provider, gave unequal treatment to employees on the basis of race, sexual orientation, and gender identity. In an anonymous post titled “Micromanaged and Problematic,” Duane claimed that:
There are no politics if you fit in. […] [I]f 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. Treatment in the workplace, in terms of who gets flexible hours, interesting projects, praise, promotions, and a big yearly raise, is different and seems to run right along these characteristics.
Duane wrote the review after he developed complications following gender confirmation surgery while on short-term disability leave. IXL was allegedly resistant to Duane’s request for a four-week 50% remote work arrangement as a reasonable accommodation during his recovery. While IXL ultimately agreed to a half-time remote work plan with detailed requirements, Duane published the review because he was incensed after learning that straight, cisgender, and able-bodied coworkers had been allowed to work remotely between 50% and 100% of the time without similar requirements.
Soon after making the post, Duane complained to his supervisor that he was experiencing workplace discrimination because of his gender identity and request for accommodations. Duane’s supervisor immediately alerted IXL’s CEO, and the CEO set up a next-day meeting to discuss Duane’s complaints. However, between the time the meeting was scheduled and actually took place, the CEO was tipped off to the scathing Glassdoor review. Although Duane’s review, like nearly all Glassdoor reviews, was anonymous, the CEO suspected Duane. The CEO then confronted Duane about the Glassdoor post during their meeting, and fired Duane after he confirmed that he was the author.
Duane’s case seemed promising from an employee’s standpoint. After he filed a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC), the EEOC found reasonable cause to believe that discrimination in the form of retaliation occurred (which happens less than 5% of the time) and pursued a lawsuit on Duane’s behalf in federal court. IXL’s CEO even admitted to being “warned” by human resources personnel that firing Duane for making the post could break the law, though he maintained that Duane was discharged based on “other parts” of his Glassdoor post that were “generally critical” of IXL.
Still, after a one-week federal jury trial, the eight-person jury found that Duane’s termination did not violate the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 (Title VII) or the Americans with Disabilities Act (ADA).
While Duane’s case is factually interesting, it does not mean that employers can declare victory in the Glassdoor Wars. Before trial, United States District Judge Vince Chhabria found that he could not determine whether IXL had violated Title VII or the ADA as a matter of law. Rather, a jury, as finder of fact, had to determine “whether IXL’s decision to fire Duane was in retaliation for his complaints about discrimination at the company.” The issue of whether a challenged employment decision is discriminatory or retaliation is often highly circumstantial, and there is nothing stopping a future jury presented with similar (or even identical) facts from reaching the opposite conclusion.
Nor does this case imply that transgender persons (with or without disabilities) can no longer succeed against employers on claims of unlawful discrimination or retaliation. Transgender persons are facing increasing uncertainty under the current Administration; the U.S. Department of Justice (DOJ) has asserted that businesses can legally discriminate against employees on the basis of gender identity, and all references to transgender persons have been removed from the U.S. Department of Health and Human Services (HHS) website, including the Office of Civil Rights (OCR). However, independent agencies like the EEOC continue to maintain that gender identity is protected from discrimination in employment under federal law, as do increasing numbers of state, county, and local antidiscrimination laws. Employers must follow the laws that are most favorable to their employees.
In the federal lawsuit, the EEOC only alleged that Duane suffered unlawful retaliation. While Duane initially believed that he (and others) experienced unlawful workplace discrimination at IXL, and continued to assert that he had a good-faith basis for raising concerns of discrimination, the EEOC chose to focus on Duane’s claim that his verbal and written complaints were entitled to protection against retaliation. While the EEOC and Duane were ultimately unsuccessful, employers can sometimes “win the battle and lose the war” when discrimination claims fail and retaliation claims succeed.
Employers should stay tuned as these areas of the law continue to develop—not just with respect to transgender persons and critical online postings, but employees of all protected categories utilizing any mode of communication to voice workplace grievances.
Businesses with questions about the current impact of this decision on present, impending, or future litigation should contact counsel with experience in litigating matters involving unlawful discrimination and retaliation in employment.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Alexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation. He may be reached at 215-665-3048.