Issue:  Vol. 47 / No. 38 / 21 September 2017
 

Bay Area company accused of anti-trans bias

NEWS


s.hemmelgarn@ebar.com

Adrian Scott Duane. Photo: Courtesy LinkedIn
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A transgender man is accusing a Bay Area educational technology company of firing him because he said online that it practiced discrimination.

In its employment discrimination complaint filed in May in the U.S. District Court for Northern California, the U.S. Equal Employment Opportunity Commission said that San Mateo-based IXL Learning Inc. violated federal law by retaliating against product analyst Adrian Scott Duane, 32.

The complaint, in which the EEOC is the plaintiff, said that IXL fired Duane just minutes after he was confronted about a negative review he'd posted to the job recruiting and rating site Glassdoor.com.

"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 ... Most management do not know what the word 'discrimination' means, nor do they seem to think it matters," Duane said on the site.

The EEOC's court filing said that Duane, who started working for IXL in July 2013, told co-workers that the company was "unwelcoming to employees who are not white or Asian-American, and who are not able-bodied, and who do not fit into neat categories of gender identity, orientation, and expression."

The complaint also said that other workers "probed Duane with inappropriate questions about his gender identity and orientation."

For example, "On at least one occasion, after seeing scars on Duane's chest, an employee asked another co-worker if Duane used to be a girl."

Additionally, when Duane requested to telecommute because of his recovery from gender confirmation surgery, IXL treated the request differently than requests to work remotely that two straight co-workers had made.

Duane wrote his Glassdoor post because of the alleged dispute, and in a January 2015 meeting with his supervisor, he reported his concerns about workplace discrimination, the complaint stated.

Two days later, Duane outlined his worries to Paul Mishkin, IXL's CEO, and "Mishkin confronted Duane about the Glassdoor.com post," according to the complaint. After he confirmed that Duane had written the anonymous post, Mishkin fired Duane.

"IXL admits that the reason for terminating Duane" was the Glassdoor post, the EEOC's court filing stated.

EEOC trial attorney Ami Sanghvi stated in a news release, "While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant. If an employee reasonably believes that illegal discrimination occurred, the EEOC will vigorously defend that worker's right to raise the issue, whether they do so by filing a charge with our agency, notifying company management or posting in a public arena such as Glassdoor.com."

Duane wasn't available for comment.

IXL hasn't filed a response in court, but in an email to the Bay Area Reporter, Mishkin said, "I believe deeply in a fair, open work environment where employees feel safe and encouraged speaking up about any workplace issue. Mr. Duane's allegation of discrimination was not a factor in his termination."

Mishkin added that "The EEOC has already determined that Mr. Duane did not face discrimination at IXL as a result of his gender identity, as did the National Labor Relations Board in a separate ruling after a full trial."

In response, Sanghvi said, "The EEOC does not comment on investigations that it undertakes, but we did issue a letter of determination finding reasonable cause to believe IXL violated retaliation provisions" of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act "and that we met all conditions necessary before filing the lawsuit."

Mishkin provided an April 2016 NLRB decision signed by Administrative Law Judge Gerald Etchingham that stated, "Duane's angry and impulsive" Glassdoor post "is better characterized as childish ridicule in the nature of a personal attack on [IXL's] ability to recruit new employees than as related to a legitimate labor dispute or ongoing grievances from a group of employees."

The post "was so disloyal and recklessly disparaging of Respondent as to lose protection" under the National Labor Relations Act "and his discharge was lawful," Etchingham added.

The judge also found that IXL had "reasonably hesitated in accepting" Duane's remote work request due to his "prior low productivity working remotely," but had ultimately accepted Duane's proposal "in its entirety with no changes."

In his email, Mishkin said, "The EEOC's sole remaining area of inquiry relates to an unsupported claim about retaliation, not discrimination."

The EEOC's complaint seeks lost wages, damages, and injunctive relief aimed at preventing similar discrimination.

In its news release the EEOC said it had tried unsuccessfully "to reach a pre-litigation settlement through conciliation."






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