Should Workers Use The Word “Discrimination” When Complaining About Employment Discrimination?

Having represented retaliation victims for more than twenty years, our wrongful termination lawyers in Marion County know that when defending against unlawful retaliation lawsuits, employers invariably deny that the employee complained about some form of unlawful employment discrimination. Instead, our wrongful termination lawyers in Ocala, Florida have learned, employers disingenuously maintain that although the employee might have complained about some perceived problem in the workplace, the employee never complained about perceived unlawful employment discrimination. In other words, although employers may acknowledge that an employee complained about something, they will almost never admit that an employee complained about perceived unlawful employment discrimination. Employers advance such arguments because in order to be protected from retaliation under federal employment discrimination law, employees must complain about perceived unlawful employment discrimination.

The refusal of employers to admit that an employee lodged a complaint about perceived unlawful employment discrimination often creates problems of proof in the employment discrimination context. In promoting and rubber-stamping such employer arguments regarding the substance of an employee’s complaint, employer-friendly courts often refuse to extend protection from retaliation to employees unless they use “magic words” when lodging a complaint. In this article, our wrongful termination attorneys in Marion County explain how the decision in Steele v. Kroenke Sports Enterprises, LLC,  264 Fed. Appx. 735 (10th Cir. 2008) demonstrates that when employees believe they have been discriminated against at work and make a complaint about the perceived discrimination, they should use the word “discrimination” when lodging a complaint.

Retaliatory Discharge Lawsuit

In that case, a woman named Steele brought a retaliation lawsuit against her former employer, Kroenke Sports Enterprises, LLC (Kroenke Sports), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act (ADEA). Title VII prohibits employers from discriminating against employees on the basis of sex. The ADEA forbids employers from discriminating against employees on the basis of age. In order to protect employees from discrimination, Title VII and the ADEA contain anti-retaliation provisions. Under Title VII, employees are protected from retaliation when they complain about perceived sex discrimination in the workplace. Under the ADEA, employees are protected from retaliation when they complain about perceived age discrimination in the workplace. Steele claims that she was fired in retaliation for complaining about sex discrimination and age discrimination.

Steele worked for Kroenke Sports as Director of VIP Sales. In this position, she was supervised by a man named Ackerman. In September 2003, Ackerman urged Steele to “pitch” for a job at the Universal Lending Pavilion (ULP), a concert venue run as a joint venture between Kroenke Sports and Clear Channel Entertainment, selling corporate sponsorships. Ultimately, Steele was informed by the Executive Vice President at Kroenke Sports, Ehrlich, that Clear Channel did not want her to take on that role. Steele claims that Ackerman later informed her that it was stated that she was “not young and hip enough for the job.” The job eventually went to a candidate from Clear Channel, who Steel contends is a younger male with less experience than her.

Soon after losing out on the job opportunity at ULP , Steele’s salary was significantly decreased from a base of $50,000 to $30,000 and her commission plan was modified. In October 2003, Steele complained to Human Resources about her failure to get the ULP position, the “young and hip” comment, and her salary reduction. Because of panic attacks, Steele requested FMLA leave for two weeks in October 2003. In February 2004, Kroenke Sports fired Steele for allegedly selling event tickets to ticket brokers in violation of company policy.

Employees Should Use “Magic Words”

Kroenke Sports filed a motion with the trial court seeking dismissal of Steele’s retaliatory discharge claim. In moving for dismissal, Kroenke Sports argued that Steele could not establish that she was protected from retaliation by Title VII or the ADEA because she never complained about sex or age discrimination. Instead, according to Kroenke Sports, Steele only complained that the decision not to select her for the ULP position was “unfair.” The trial court dismissed Steele’s retaliatory discharge claim. Adopting Kroenke Sports’ argument, the district court determined that Steele was not protected from retaliation under Title VII or the ADEA because when she complained to Human Resources she never “mentioned sex or age discrimination.”

The U.S. Tenth Circuit Court of Appeals affirmed the dismissal of Steele’s retaliatory discharge claim. On appeal, Steele argued that the trial court “ignored” evidence that she was protected from retaliation by Title VII or the ADEA. Steele maintained that she complained to Human Resources that Ackerman informed her that she was not considered “young and hip enough” for the ULP position and that the decision was unfair.

The Tenth Circuit found that the trial court “did not ignore this evidence.” Instead, the Tenth Circuit explained, the trial court found that Steele was not protected from discrimination by Title VII or the ADEA because Steele “did not mention sex or age discrimination and only complained that the action was unfair.” In affirming the trial court’s decision, the Tenth Circuit concluded that it “agree[d] with the [trial] court’s analysis.” Thus, according to the Tenth Circuit, because Steele did not complain that the decision not to select her for the ULP position was “unfair” because it was sex or age discrimination, Steele was not protected from retaliation by Title VII or the ADEA. Unable to establish that her complaint entitled her to protection from retaliation under Title VII or the ADEA, Steele’s retaliation claim failed as a matter of law.

Free Consultation For Employees

One of the most important decisions wrongful termination victims must make is which wrongful termination attorneys to consult with regarding their protection from retaliation. As part of our commitment to helping retaliation victims, an experienced wrongful termination lawyer will speak with you personally and you will receive the individualized attention your case deserves. We offer free confidential case evaluations for employees, and you will not have to pay to speak with our wrongful termination attorneys regarding your rights. We are available for consultation at your convenience, including scheduling telephone consultations for evenings and weekends.

Marion County Wrongful Termination Lawyers

Based in Ocala, Florida, and representing workers throughout Florida, our wrongful termination attorneys in Marion County, Florida have litigated wrongful termination cases for more than two decades. If you have been wrongfully fired or have questions about your protection from retaliation under federal employment discrimination law, please contact our office for a free consultation with our wrongful termination lawyers in Marion County, Florida. Our employee rights law firm takes wrongful termination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.