Hands Off My Co-Worker: Sixth Circuit Clarifies What is Protected Activity for Retaliation Claims

On April 22, 2015, the Sixth Circuit affirmed a $1.5 million verdict for the U.S. Equal Employment Opportunity Commission in a sexual harassment and retaliation suit against New Breed Logistics, a High Point, NC-based logistics services provider, holding that workers who tell sexually harassing supervisors to cut it out are protected from retaliation under Title VII of the Civil Rights Act of 1964. EEOC V. New Breed Logistics (4/22/15)

According to the EEOC's suit, New Breed unlawfully discriminated against three female workers in its Memphis warehouse who were sexually harassed by New Breed supervisor James Calhoun, and retaliated against them after they objected to his sexual advances. The EEOC also charged that Calhoun retaliated against a male employee who verbally opposed the supervisor’s sexual harassment and supported the women’s complaints. Specifically, Calhoun fired (or was involved in the firing of) each of the four employees, claiming performance and attendance issues.

Title VII prohibits an employer from retaliating against an employee who has either: (1) “opposed any practice made an unlawful employment practice by this subchapter,” or (2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII’s anti-retaliation provision, the EEOC had to demonstrate that the claimants:

1. Engaged in activity protected by Title VII;
2. The defendant knew of their protected activity;
3. Thereafter, the defendant took adverse action against the claimants; and
4. A causal connection existed between the protected activity and the materially adverse action.

The Company argued that telling Calhoun to stop harassing did not amount to protected activity under Title VII. The Sixth Circuit, therefore, had to determine as a threshold issue whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim. The answer was a clear “yes.”

The opinion from the Sixth Circuit, on an issue of first impression, clarified the scope of protected activity under the opposition clause of Title VII’s retaliation provision. The Court of Appeals held:

• The opposition clause of Title VII has an “expansive definition” and courts should give “great deference” to the EEOC’s interpretation of opposing conduct.
• Applying these standards, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity by Title VII.”
• “If an employee demands that his/her supervisor stop engaging in this unlawful practice – i.e., resists or confronts the supervisor’s unlawful harassment – the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed… Therefore, it would be unfair to read into the provision a requirement that a complainant only engages in protected activity when s/he opposes the harassment to a ‘particular official designated by the employer.’”

For employers the takeaway is this – be aware and be diligent. Employers must be aware of employee rights and recognize that employer retaliation against protected employee conduct is unlawful. Employers must also fully investigate termination decisions before showing an employee the door. Do not act on a manager’s or supervisor’s decision in a vacuum – do your due diligence at the outset to limit future liability.