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Retaliation claim nevertheless advances
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Anti-retaliation protections under Title VII of the Civil Rights Act of 1964 continue to vex employers. The U.S. Equal Employment Opportunity Commission (EEOC) recently argued that the scope of those protections should be broadened. The 5th U.S. Circuit Court of Appeals, relying on longstanding precedent, rejected the EEOC’s position.
Rite Way Service had a cleaning contract with the Biloxi, Miss., school system. The company hired Mekeva Tennort as a general cleaner for the school years of 2009-10 and 2011-12. Prior to Tennort’s report regarding a supervisor’s unlawful conduct, she had no history of disciplinary issues.
At the start of the 2011-12 school year, Tennort was placed under the supervision of an interim supervisor, Willie Harris. Within the first week of Harris’ assignment, Tennort allegedly witnessed Harris engage in two acts of harassment. On one occasion, Harris pretended to smack a female co-worker’s rear end while saying, “ooh wee.” On the second occasion, Harris made a comment to the same co-worker about the tightness of her pants, commenting that, “I’m a man, I’m gonna look.” Following the second incident, the co-worker made a complaint to Rite Way about Harris and identified Tennort as an eyewitness.
A Rite Way project manager investigating the complaint, Alex McCullom, allegedly attempted to dissuade Tennort from being a witness and told her, “[Y]ou know what they do to people who do stuff like this.” Undeterred, Tennort submitted a written report of her observations of Harris’ conduct. In the weeks that followed, Rite Way issued Tennort multiple disciplinary warnings, leading to her discharge in September 2011.
The EEOC sued Rite Way on Tennort’s behalf, asserting that the company discharged her for submitting her report on Harris’ conduct. The lower court granted summary judgment in favor of Rite Way. In so doing, it relied on long-established law that a retaliation claim requires that a plaintiff have a reasonable belief that a violation of Title VII had occurred. Tennort, the lower court concluded, could not establish such a belief.
The EEOC appealed. The commission argued that, to be protected from retaliation, an individual who is merely responding to an employer’s investigation of a harassment complaint need not hold a reasonable belief that unlawful conduct had occurred in order to be protected by the anti-retaliation provisions of Title VII. The EEOC sought to limit the requirement of a “reasonable belief” to instances where an employee affirmatively complains of misconduct. The EEOC asserted that such an interpretation of Title VII is consistent with U.S. Supreme Court precedent and public policy.
The appeals court disagreed. The court held that public policy did not warrant an expansion of anti-retaliation protection, noting that the reasonable belief standard is already a compromise between the strict statutory language of Title VII and the law’s intent to protect employees who oppose discriminatory conduct.
The court nevertheless determined that a jury could find that Tennort reasonably believed that she was providing information about a Title VII violation. Retaliation claims based on isolated remarks are not always sufficient, the court opined. However, it found a combination of factors—including that the complained-of conduct was directed at a particular employee by a supervisor and McCullom’s alleged admonishment just prior to Tennort submitting her eyewitness report—weighed against a grant of summary judgment.
EEOC v. Rite Way Service Inc., No. 15-60380 (5th Cir. April 8, 2016).
Professional Pointer: Employers successfully defending against discrimination claims are repeatedly subject to meritorious retaliation claims. The unlawful treatment of plaintiffs involved in discrimination claims continues to be a significant concern for employers who otherwise comply with equal employment opportunity laws.
Scott M. Wich is a partner with the law firm of Clifton Budd & DeMaria LLP in New York City.
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