Adrian Scott Duane posted a complaint on Glassdoor.com about his company IXL Learning days before he was fired. “If 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,” Duane wrote.
The transgender mathematician said managers at the education technology company “do not know what the word ‘discrimination’ means, nor do they seem to think it matters.”
The company acknowledged Duane, who had recently complained he was treated differently because of his gender identity, was fired over his negative post on the job-review site. This complaint was at the root of the U.S. Equal Employment Opportunity commission’s retaliation lawsuit against the San Mateo, California, company.
What might have seemed like an easy win for the EEOC was anything but. A jury recently sided with IXL in California federal district court.
Jeffrey Wilson, a Young Basile Hanlon & MacFarlane shareholder in Michigan who represented IXL in court, said the facts of Duane’s case provided a steep hill for the defense. The EEOC doesn’t often lose at trial, and the venue was progressive San Francisco.
“I read some of the headlines on our case, and I even thought, ‘How did the jury find for the company here?’ This is someone who went on a two-month gender confirmation surgery leave. He comes back and complains about discrimination, he’s then fired two days later after the complaint. They admit they fired him for the post. How did that possibly result in a verdict for the company?” Wilson said in an interview.
Wilson said the defense carefully focused arguments from the start of the case, to settlement discussions and eventually at trial. “I had to make sure the jury understood what the EEOC was alleging, and what they were not alleging,” Wilson said.
Duane’s attorney, David Marek, did not respond to requests for comment. Duane did not respond to an email sent to his personal address. EEOC lawyers said Tuesday in a court filing they are still mulling whether to pursue a request for a new trial or to appeal the jury’s verdict.
Duane, according to the EEOC, said he believed the company was unwelcome to those “who do not fit into neat categories of gender identity, orientation, and expression.” The lawsuit said employees asked Duane inappropriate questions about his gender identity and orientation. The complaint also claimed Duane was treated differently when he asked for accommodations to work remotely.
Most of the EEOC’s claims are resolved through settlements and other agreements that are filed before any lawsuit is brought. The agency’s attempt to settle claims against IXL failed, and the agency filed suit in May 2017 in the U.S. District Court for the Northern District of California. The EEOC boasts a high success rate of success in lawsuits filed in court and rarely takes cases to trial. The agency achieved what it called a “successful outcome” in more than 90 percent of its cases last year, according to a report in January.
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Duane’s post on Glassdoor featured prominently in the agency’s news release announcing the lawsuit. “While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant,” EEOC trial attorney Ami Sanghvi said in a statement then. Retaliation claims are the leading complaints filed at the EEOC, making up 45 percent of filings.
Wilson and IXL, a leading national provider of online educational services, argued management had no knowledge that Duane was transgender, only that he presented as a gay man. The company stressed it valued training and oversight.
In a discrimination case, the plaintiffs need to prove some motive or pretext in an adverse action. Retaliation is simpler, and the company’s admission that it fired Duane for his Glassdoor post posed hurdles for the defense.
Jury selection gave insight into Wilson’s strategy. Two of the eight jurors had close relatives, including a child, who were transgender. Wilson said he welcomed those jurors and felt they were likely to recognize what he described as genuine claims of retaliation.
The defense brought in executives and company employees to discuss workplace culture and what IXL does day to day. Wilson said the defense arguments centered around the company’s accommodations of Duane’s requests.
The company earlier fought—and won—against Duane’s claims at the National Labor Relations Board. An administrative law judge in 2016 ruled for the company, concluding Duane’s Glassdoor review was “individual gripes posted to hurt [IXL's] ability to recruit prospective employees” that constituted a “reckless and impetuous reaction to [IXL's] hesitation to immediately accepting Duane’s regular fifty percent remote work privilege.”
Alexander Batoff, an associate in Philadelphia at Obermayer Rebmann Maxwell & Hippel, warned in a blog post that Duane’s loss at trial should not make employers “declare victory in the Glassdoor Wars.”
“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,” Batoff wrote. “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.”
Batoff said employers should take heed that the EEOC continues to push for transgender worker equality, despite the Trump administration’s moves against gender identity protections in court.
“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,” Batoff said.