[author: RICHARD D. TUSCHMAN]

An employer’s unconditional offer of a light-duty position to a pregnant employee became a conditional offer after the employee filed an EEOC charge, and was rescinded when the employee refused to withdraw her charge. That was unlawful retaliation in violation of Title VII, according to the Eleventh Circuit in a recent decision, Chapter 7, Trustee v. Gate Gourmet, Inc. (11th Cir., June 11, 2012).

The employee’s job involved driving a truck from a warehouse to a gate where an airplane was docked, using a lift system to raise the truck’s storage container to the airplane’s height, and then pushing carts of food, drink, and ovens across a ramp from the truck to the airplane.  When the employee’s pregnancy made it impossible for her to perform her job, she submitted a doctor’s note listing various medical restrictions. Her supervisor initially told her that the company had no light duty positions available and purported to fire her.  When the employee filed a union grievance, the employer found a light duty job for the employee and offered to reinstate her in that job, which was consistent with company policy.  Subsequently, when the employer received the employee’s EEOC charge of pregnancy discrimination, the employer conditioned its offer upon the employee’s withdrawal of her charge.  When the employee refused to withdraw her charge, the employer rescinded its offer.

On one level, the employer’s response was natural.  Why would an employer want to reinstate an employee if she is not going to withdraw her charge of discrimination?  The problem here was that the employee should have been given a light duty position to begin with, and when the company realized its error, it offered to reinstate the employee unconditionally.  By imposing a condition on that offer after the employee filed her EEOC charge, the company was punishing the employee for filing the charge.  That is unlawful retaliation, according to the Eleventh Circuit.

The lesson is that once an employee files an EEOC charge, an employer must proceed very cautiously when dealing with the employee.  Employers are free to offer a benefit to an employee in an attempt to settle an EEOC charge. But conditioning the employee’s receipt of a benefit that the employer already owes to the employee on the withdrawal of the employee’s charge will be construed as retaliation.  The difference is critical.