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.
5 comments:
and Mike from SendGrid puts out a perfectly coherent cause for termination in any case. Adria's actions rendered her unable to fulfill the role she was hired for - SendGrid has no requirement to reassign her to a different role ('at-will' right there).
"A SendGrid developer evangelist’s responsibility is to build and strengthen our Developer Community across the globe. In light of the events over the last 48+ hours, it has become obvious that her actions have strongly divided the same community she was supposed to unite. As a result, she can no longer be effective in her role at SendGrid."
Adria was there in a professional role, and chose her own agenda over those duties. Her choice. Whether it was the right choice to make is her own decision to make as well. There were plenty of ways she could have addressed this issue without it coming into conflict with her role at Sendgrid, she did not choose those options.
But then, you're talking about the law here, not rationality or logic :-P
I disagree. http://www.rmlawyers.com/blog/2013/03/sendgrids-unlawful-and-retaliatory-termination-of-adria-richards.shtml
Mr. Mohamedbhai, thanks for your comment. I linked to your post on Twitter. If you believe she has a claim, I hope that you (or someone else) will offer to represent Ms. Richards.
Did the techies shut down rmlawyers.com. I can't open the link. I have my own analysis at bradfordfirm.wordpress.com.
Rich, the link works for me.
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