Pop quiz: Can you condition a job offer on a withdrawal of an EEOC charge?

Consider the following chain of events:

1. 8/14: Pregnant Employee, armed with a doctor’s note, asks for modified duty, and employer terminates her.
2. 8/15: Employee files an EEOC charge.
3. 8/18: Employer reconsiders, changes its mind, and decides to offer a light-duty position, consistent with its policy to offer available light-duty positions to employees with medical conditions.
4. 8/20 – 8/28: Employer receives notice of EEOC charge.
5. 8/28: Employer communicates offer of light duty position to Employee, but on the condition that she drop her EEOC charge.
6. 8/29 and thereafter: Employee refuses job offer, and is never offered another position with the company.

Did this employer retaliate by conditioning the light-duty job offer on the employee dropping her EEOC charge? According to Chapter 7 Trustee v. Gate Gourmet, Inc. (11th Cir. June 11, 2012), the answer is an unconditional “yes.”

A jury reasonably could find from the sequence of events that Gate Gourmet decided to unconditionally offer Williams the light-duty silverware wrapper position and would have done so but for the fact that she filed an EEOC charge. Once it learned that she had, Gate Gourmet changed what would have been an unconditional offer into a conditional offer in which she could have the position (with back pay) only if she dropped the charge. When Williams would not drop it, Gate Gourmet rescinded the offer. This permissible interpretation of the evidence creates a reasonable inference that the statutorily protected filing of and refusal to settle the EEOC charge caused Gate Gourmet to deny Williams a light-duty position, which is a materially adverse action.

I’ve written before how employers must treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. Because this employer had a policy to offer available light-duty positions to employees with medical conditions, it was required to offer the light-duty silverware wrapper position to Williams. That it decided to rescind its offer only after receiving notice of Williams’s EEOC charge is unconditionally and unlawfully retaliatory.