21 March 2013

Can Adria Richards sue (and win) for retaliation?

In the wake of Adria Richards's termination, there have been some suggestions that she sue her former employer SendGrid for retaliation (well, of course she can sue; but can she win?). The common-law legal term for this would be "retaliatory discharge."

As I see it, there are a few problems with this theory.

First, Colorado (like 48 other states, with the exception of Montana) is an "at-will" employment state. That means an employee can be fired for any reason, or for no reason (subject to a handful of statutory exceptions, like civil rights, age discrimination, disability discrimination). So the presumption is already against  her.

Second, retaliatory discharge typically presumes that the retaliation was done in response to some illegal action of the employer, or fellow employers. In this case, there is no evidence to that SendGrid did anything illegal. The allegedly harassing comments were made by someone else not associated with SendGrid. So it's difficult for me to see how SendGrid retaliated against her.

Third, it's not clear that Adria actually engaged in a protected activity.

Fourth, there has been a suggestion that her employer owes her a duty of care to protect her. Generally, this would only be the case if the harm was foreseeable, or if the employer knew of a danger yet failed to warn the employee. Again, there are no facts in the public view that SendGrid somehow knew of any such danger or failed to warn Adria.

Lastly, her case becomes even more difficult if the employer can show they have a legitimate, non-discriminatory reason for firing the employee. SendGrid appears to have already alleged this.

There may be other facts unknown to us that permit Adria to sue under some different claim. However, I suspect that a claim of retaliatory discharge would fail.

Of course, this doesn't mean that she won't sue--I just don't think she would win. Other smart people may very well disagree with me. You're free to post such comments below.

*I am not a lawyer. This is not legal advice. It is my opinion based upon the publicly available facts and some general legal research.
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