In Benes v. A.B. Data, Ltd., ___ F.3d ___, Case No. 13-1166 (7th Cir. July 26, 2013), the court upheld termination of an employee stemming from his misconduct during mediation of a sex discrimination complaint. The court described the circumstances of the misconduct as follows:
The EEOC arranged for mediation in which, after initial joint session, the parties separated and a go-between relayed offers. In a separate room mediation, each side (including attorneys and assistants) stays in its own room. The intermediary shuffles between rooms. Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise. But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly: ‘You can take this proposal and shove it up your ass and fire me and I’ll see you in court.’
The court then noted, “Within an hour A.B. Data accepted Benes’s counterproposal: it fired him.”
Benes claimed the termination constituted unlawful retaliation under Title VII of the Civil Rights Act of 1964. However, the circuit court upheld the termination stating:
It was Benes who sabotaged the mediation session by barging into the other side’s room. Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.. . .We cannot see why misconduct during mediation should be consequence free. Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.
The court concluded Title VII “covers investigation and litigation in the same breath” and, since it does not “create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation.”