MPR News Primer: The Michael Brodkorb case

Former Senate Republican caucus staffer Michael Brodkorb is preparing to file a gender discrimination claim against the Minnesota Senate.

The situation raises many questions about the legal issues involved and how the case might play out.

What's the background on Brodkorb's situation?

Brodkorb was fired in December 2011 a day after it was revealed that former Senate Majority Leader Amy Koch had an inappropriate relationship with a staffer. It is now known that staffer was Brodkorb, chief spokesman for the Senate Republican Caucus.

"The law in Minnesota is that you cannot terminate an employee, man or woman, based on discriminatory conduct," Brodkorb's attorney Phil Villaume said during a press conference. "We are taking the position that he was discriminated against based on his gender, based on disparate treatment from other staff."

Villaume contends that female staffers from both political parties engaged in intimate relationships with other legislators and none of them were fired because of it.

Since being fired, Brodkorb pursued mediation with the Senate.

But on Wednesday, March 14, Secretary of the Senate Cal Ludeman wrote in a news release that the Senate would not agree because Brodkorb had not provided "any factual basis for any dispute over his termination," and that Brodkorb sought to "disrupt the work of the Senate in the current legislative session, to distract members of the Senate, to extort a payment from the Senate, and to try his so-called claims in the media."

So, is it illegal to have an affair with your boss?

Generally speaking, if the relationship is consensual, it's legal. All that changes, however, if the relationship is made a condition of work, said attorney Stephen Cooper.

So far, Brodkorb's legal team has not indicated their client's relationship with Koch was non-consensual.

What are both sides claiming?

Since Brodkorb was fired on Dec. 16, 2011, the Senate has maintained that he is an "at-will" employee, meaning he can be let go at any time. Brodkorb's boss, Koch, stepped down as Majority Leader, so his services as her chief spokesman would no longer be needed, the Senate contends. Like all new employees of the Legislature, Brodkorb signed a document when he was hired acknowledging his "at-will" status.

Brodkorb's lawyers say he was fired illegally. They say the only reason Brodkorb was terminated was for having an intimate relationship with Koch. Brodkorb's lawyers also say his personnel file did not contain a record of poor work performance.

What Brodkorb is claiming is commonly known as reverse discrimination because people typically think of women as being the victims of gender discrimination, said Bill O'Brien, an expert in workplace and employment rights and the founding partner of his firm Miller O'Brien Cummins.

"They are most often brought in the context of things like affirmative action cases, where white students or majority students are claiming that they were overlooked or discriminated against due to affirmative action policies," O'Brien explained.

If Brodkorb can effectively argue that female employees who had intimate relationships with legislators were treated differently, Brodkorb may have a case, said employment attorney Stephen Cooper.

"If you have a set of rules for men and you have a set of rules for women and they're different, you have to be able to justify why it is that the rules actually are reasonable," Cooper said. "That's tough to do."

What's the next step for Brodkorb's legal team?

Villaume says they plan to file a complaint first with the Equal Employment Opportunity Commission, which will then issue a "right to sue" letter. The EEOC may decide to investigate the claim, or it may just go ahead and issue the letter.

That's a necessary step if Brodkorb wants to file a lawsuit in a federal district court, which Villaume says is a possibility.

There are advantages to filing on the federal level, O'Brien said. First, it prolongs the inevitable, he said. Parties often say they want to go to court, but in fact want to settle.

Secondly, the EEOC will ask both parties if they want to resume mediation. In this scenario, both parties would have to present their case, which would give both sides an opportunity to size up the opposition.

Villaume also said they are considering a lawsuit on the state level. In that case, Brodkorb can bypass the state agency that handles discrimination claims and go straight to court.

If the case goes to court, will the identity of the other lawmakers and employees who have allegedly engaged in affairs be disclosed?

During the press conference, Villaume said his legal team would depose lawmakers and employees who had affairs to make their case.

But he added that judges typically issue confidentiality agreements or protective orders in such cases.

Could Brodkorb bring lawsuits against other parties involved in his firing?

In their Notice of Claim, Brodkorb's lawyers write that he "reserves the right to include other tort claims, including but not limited to, invasion of privacy claims" against a host of people including Sen. Geoff Michel, R-Edina, who was first notified of Brodkorb's inappropriate relationship, and Cullen Sheehan, the former Senate staffer who first brought Brodkorb and Koch's relationship to Michel's attention last fall.

O'Brien explained that an invasion of privacy claim typically involves the disclosure of information that is clearly private and, by its disclosure, can adversely affect the person bringing the claim.

But doesn't Brodkorb's "at-will" status complicate his case?

Not if his lawyers can prove other staffers in similar situations were treated differently. If they do, Brodkorb's "at-will" status becomes irrelevant.

"At-will simply means that an employer can terminate an employee for any reason, no reason, but not an illegal reason," said O'Brien. "So in cases like this, motive is terribly important. What was the rationale for his termination and what is the legitimate business reason that the employer is going to articulate?"

Making the case that Brodkorb was let go because he was an at-will employee whose services were no longer needed after Koch stepped down may be complicated by how quickly Brodkorb was fired, Cooper said.

"They have one big problem with that argument," he said of the Senate's take on the situation. "They fired him before they selected a new leader. So, if they had waited — had the patience to wait a few weeks — and had a new leader come in and then the new leader had fired him, that would be a very persuasive argument."

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