As the popularity of the Equal Employment Opportunity Commission's voluntary mediation program increases, employers occasionally face situations where employees' behavior crosses the line during sometimes charged mediation confrontations. In these situations, employers struggle with their responses to such behavior. Earlier this week, the Seventh Circuit Court of Appeals concluded that employers can take disciplinary action based on such behavior in some situations without this being deemed retaliatory.

In Benes v. A.B. Data, Ltd., the EEOC mediator was engaging in typical "shuttle diplomacy," communicating offers and counteroffers between the plaintiff and his employer. Apparently offended at the employer's last offer, the plaintiff burst into the room containing the employer's representatives and told them to "take your proposal and shove it up your ass." The employer subsequently fired the plaintiff, and he filed a Title VII retaliation claim.

The trial court concluded that the plaintiff was fired for his behavior during the mediation, and not due to his filing of the original discrimination charge. The Seventh Circuit agreed, stating that mediation proceedings would be considerably less useful if parties were allowed to violate basic protocols. Title VII does not require that misconduct during mediations be consequence free. The employer's reaction in this case would not dissuade reasonable persons from pursuing their Title VII rights.

Employers should carefully review these situations before taking disciplinary action against employees based on their conduct during an internal investigation, EEOC mediation or other proceeding relating to a claim of discrimination. However, as this case bears out, employees do not have absolute immunity from the consequences of egregious misbehavior during these proceedings.