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The advice of legal counsel does not immunize an employer against later employment lawsuit

An Oregon trial court recently held that the advice of legal counsel does not immunize an employer against a later employment lawsuit. The employee lodged complaints involving sexual harassment and workplace safety concerns. The employer consulted with legal counsel, who advised, on the basis of her being an at-will employee, that the employee could be terminated. Further, the employer testified his attorney told him the company not only could but should terminate her. “According to (an owner of the employer), the attorney referred to Plaintiff as ‘a troublemaker’ and advised Morse to terminate her.” That owner testified the company would not have terminated her if the attorney hadn’t given his blessing.

The court recognized Tenth Circuit precedent in favor of an employer in a similar situation, but in that situation, the attorney recommended the plaintiff’s request for a shift assignment be denied because a similar request was already at-issue in a different pending lawsuit. In other words, the attorney recommended the employer treat the employee uniformly with its prior practice. Because, in following the attorney’s advice, the company’s “motive” was to treat its employees uniformly, the Tenth Circuit held its motive did not include a retaliatory/unlawful intent. The Tenth Circuit simply held the company had acted for a lawful reason — one that its attorney had articulated — and not even in part an unlawful reason. In so ruling the Tenth Circuit clarified that the advice of counsel was not itself a defense; it was simply evidence that supported the presence of a lawful motive.

To be sure, an employer cannot immunize itself from Title VII liability by following the advice of its lawyers. Still, given the facts of this case, the City was not required to compromise its defense of Lollis’s claims simply to accommodate McGowan’s subjective desire for a change in shifts. In sum, this record does not support a conclusion that the City’s reason for denying McGowan a shift change was pretextual. The City’s temporary refusal to grant McGowan’s request for a shift change was perhaps reactive, but cannot be said on this record to have been retaliatory.

Here, there was no similar reasoning available to the employer. If the company’s attorney had really advised that at-will employment somehow permitted an otherwise illegal discharge, that would have been incorrect. If the attorney really had somehow come to a legal conclusion the plaintiff was a “troublemaker” who should be fired, that again would only have confirmed a retaliatory motive. The fact that the company (allegedly) consulted with an attorney did not — unlike the Tenth Circuit case — suggest it had anything but an unlawful intent: The intent to retaliate against a troublemaker.

The case is a reminder that employers should consult with experienced legal counsel but not anticipate doing so can somehow immunize an employer against the consequences of unlawful actions. But, as in the Tenth Circuit case, the consultation with a lawyer can be used as evidence, when appropriate, of a lawful motive.

Source: Bloomberg Law – Document – Aichele v. Blue Elephant Holdings, LLC,, No. 3:16-cv-02204-BR, 2017 BL 405999 (D. Or. Nov. 13, 2017), Court Opinion