Best Wrongful Termination Attorney Answer: Am I protected if I complained to by boss about his racial discrimination toward other employees? Can my employer fire me because I reported sexual harassment? I think I am being retaliated against for telling HR that my manger is discriminating against women; what can I do?
Title VII of the Civil Rights Act of 1964 and Ohio’s R.C. § 4112.02 prohibit employment discrimination based on race, color, religion, sex, and national origin. As our employment discrimination attorneys have previously blogged about, these laws also make it illegal for an employer to retaliate against an employee who “opposes” unlawful discriminatory conduct. (Read: Top Employment Lawyer Reply: Can My Boss Wait To Fire Me To Avoid A Retaliation Claim?; Retaliation: Now That’s A Lot Of Waffles!; Top Sexual Harassment Attorney Reply: What Constitutes Retaliation For Reporting Sexual Harassment?; and What Can I Sue For If I’m Fired After Filing A Worker’s Compensation Claim? Best Lawyer Reply!)
To make out a prima facie case of retaliation under Title VII or Ohio anti-discrimination laws, an aggrieved employee must show that she (1) engaged in protected activity (reported the discrimination), (2) was subjected to an adverse employment activity (was fired or otherwise negatively treated), and (3) that there was a causal relationship between the first two elements (the adverse employment activity happened because the employee engaged in the protected activity).
An employee will be found to have engaged in protected activity when she has filed a charge of discrimination, participated in an investigation into discriminatory conduct, or otherwise “opposed” unlawful discriminatory conduct. What constitutes “opposing” an unlawful discriminatory practice? Does an employee need to report the offending conduct to a particular person at her workplace? Is it enough to just tell a harassing supervisor to stop?
The Sixth Circuit Court of Appeals (which covers Ohio) recently answered that last question in the affirmative. EEOC v. New Breed Logistics makes clear that telling a sexually-harassing supervisor to stop constitutes “opposition” for the purposes of Title VII, is protected activity, and can form the basis for a retaliation claim. The case, an appeal from the U.S. District Court for the Western District of Tennessee, upheld a $1.5 million jury verdict against a North Carolina based company accused of terminating four employees who opposed sexual harassment in the workplace and were subsequently terminated.
The underlying suit alleged that a New Breed Logistics’ supervisor sexually harassed three female employees at the company’s Memphis location and that all three verbally opposed the supervisor’s conduct. A fourth, male, employee also verbally opposed the conduct on one occasion, telling the supervisor he should stop because the women did not appreciate the behavior. Each of the four employees was terminated shortly after speaking out against the supervisor’s inappropriate conduct.
On appeal, the employer argued that none of the four employees had engaged in legally protected conduct, and thus could not make out a retaliation claim. Specifically, New Breed argued that merely telling a harasser to stop does not constitute opposition. While the Sixth Circuit had never ruled on this specific issue before, it looked at persuasive out-of-circuit case law and the EEOC’s guidance, holding that, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an ‘unlawful employment practice.’ 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.”
While New Breed Logistics dealt specifically with retaliation in the context of sexual-harassment, the court was interpreting the “opposition” clause of Title VII, which applies not just to gender discrimination but also to discrimination based on race, color, religion, and national origin. It follows, then, that telling a supervisor engaged in any form of discriminatory conduct under Title VII to cut it out will constitute “opposition” and be considered protected activity.
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