Retaliation Claims

Opposition

To engage in opposition to prohibited conduct, an employee must complain about an employment practice that is prohibited by Title VII. Filing a complaint of discrimination either with the employer or with the Equal Employment Opportunity Commission or local counterpart is the archetypal means of opposing prohibited conduct. The opposition activity need not take the form of a formal complaint, however, or even a complaint that specifically invokes Title VII. See, e.g., Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (seminal case holding that Title VII's opposition clause protects formal and informal complaints of discrimination, as well as complaints in other forms). The complaint must, however, indicate in some way that the challenged conduct is believed to be discriminatory; simply alleging that certain conduct is unfair, harassing, or wrong is not enough. See, e.g., Curay-Cramer v. Ursuline Acad., 450 F.3d 130, 135 (3d Cir. 2006) (“general complaint of unfair treatment is insufficient to establish protected activity under Title VII”); Crosby v. City of Walterboro, 444 F. Supp. 559 (D.S.C. 2006) (finding no protected activity where plaintiff commented that another employee's description of incident sounded like it could be sexual harassment but he did not know); but see Hashimoto v. Dalton, 118 F.3d 671, 679-80 (9th Cir. 1997) (employee's meeting with EEO counselor to discuss employment concerns was protected activity, despite employee's statement at end of meeting that she did not believe there was discrimination).

Even where a plaintiff expressly and affirmatively supports a group of employees who are in a classification protected by Title VII, such as women or racial minorities, courts generally find that such activity does not constitute protected opposition activity, in the absence of any reasonable notice that the plaintiff was thereby challenging conduct believed to be discriminatory. See, e.g., Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1126-27 (E.D. Cal. 2006) (where athletic coach advocated establishment of women's sports team, court found no protected opposition activity, because coach did not say or indicate that gender was the issue).

Similarly, the mantle of protected opposition activity will not extend to unreasonably hostile or disruptive activity in the workplace, even if such activity concerns an allegation of discriminatory conduct. See, e.g., Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1021-22 (10th Cir. 2004) (holding that opposition activity will be protected by Title VII if it reflects emotional reaction to the allegedly discriminatory act, so long as the employee's “emotional outburst” is not unchecked). A few courts have considered whether physical violence in reaction to conduct that violates Title VII can properly be deemed protected opposition conduct and have concluded that it might, if the physical violence was reasonable under all the circumstances. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 566-67 (2d Cir. 2000) (plaintiff's slap of her alleged harasser not protected activity where she had several other, more reasonable options for resisting offensive behavior).

Moreover, the employer must be responsible for the challenged conduct; if the alleged protected activity, for example, is simply a complaint about a coworker's conduct, for which the employer would not be liable, the complaint itself should not be considered protected opposition activity. See, e.g., Bruton v. Gainesville Hotel Mgmt., LLC, 2007 U.S. Dist. LEXIS 51851 (N.D. Fla. July 18, 2007) (plaintiff must establish that employer is responsible for alleged discriminatory conduct in order for complaint about such conduct to be protected activity under Title VII). This principle would apply, for example, in a case where the court dismisses the claim of coworker sexual harassment on the ground that the plaintiff never complained within the employer's established channels about such conduct; the court could then hold, accordingly, that, in the absence of any basis for imposing liability on the employer for the coworker's allegedly harassing conduct, the retaliation claim, too, must be dismissed for lack of any actual opposition activity. See, e.g., Bernier v. Morningstar, Inc., 2006 U.S. Dist. LEXIS 3958 (N.D. Ill. Jan. 31, 2006).

Finally, opposition conduct is protected under Title VII only if it is undertaken in “good faith” and if the employee subjectively believes that the employment action is illegal. See, e.g., Clark County v. Breeden, 532 U.S. 268, 270-71 (2001) (per curiam) (assuming, without deciding, that opposition must be undertaken with good-faith belief that an employer's conduct violates Title VII, and, here, deciding that no reasonable fact finder could conclude that the employer's conduct was in fact serious or pervasive enough to constitute hostile work environment).

Plaintiffs rightfully seek the protection of Title VII when they make complaints about conduct that might reasonably be considered to violate the statute. In the same vein, employers can and should seek to make all available arguments to defeat retaliation claims predicated on such complaints ' including that: 1) the complaint fails to allege a violation of Title VII or put the employer on notice that the employee is claiming discrimination; 2) the complaint is unduly vague or focuses only on unfairness or perceived wrongs, without connection to discrimination; 3) the employee's conduct was unreasonably disruptive or physically violent; 4) the complaint addressed conduct for which the employer was not responsible and could not be liable; 5) the employee did not make the complaint in good faith; and 6) the employee did not subjectively believe that the challenged conduct was harassing or otherwise discriminatory.

Participation

In addition to opposition conduct, protected activity includes participation in the investigation of any Title VII complaint, whether that investigation is conducted internally at the employer or externally by the Equal Employment Opportunity Commission (EEOC) or state EEO agency. Courts have frequently recognized that the “participation clause” of Title VII is broader than the “opposition clause”; the basis of this distinction is that participation in any form ' even making defamatory statements, or statements that are simply wrong, to an EEO agency ' is absolutely protected, whereas opposition activity is protected only when it is reasonable, as discussed above. See, e.g., Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); Rollins v. Florida Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989).

Indeed, courts have generally held that a reasonableness standard should not be applied to the participatory conduct that forms the basis of the Title VII retaliation claim. For example, in Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 413-14 (4th Cir. 1999), the court expressly declined to hold that an employee's conduct could be protected participation only if that conduct is reasonable; rather, the court held that, in light of Title VII's express language, “all testimony in a Title VII proceeding is protected against punitive employer action.” See also Sanders v. Madison Square Garden, L.P., 2007 U.S. Dist. LEXIS 57319 (S.D.N.Y. Aug. 6, 2007) (same, citing Deravin v. Kerik, 335 F.3d 195, 203-04 (2d Cir. 2003)).

Moreover, courts have refused to permit plaintiffs to avoid imposition of the reasonableness standard by simply characterizing their conduct as “participation” rather than “opposition.” In Sanders, for example, the plaintiff argued that her activities in gathering information to file a lawsuit alleging Title VII violations were participation, not opposition, because protected participation need not occur only in the context of a formal Title VII proceeding. The Sanders court resoundingly dismissed this argument, because, at the time of the alleged participation, plaintiff had not yet filed a Title VII complaint, and it would be impossible to participate in Title VII proceedings before a Title VII complaint is even filed. Sanders, 2007 U.S. Dist. LEXIS 57319, at *53-59. Nor, the court held, would the salutary purposes of the broad protection of participation in Title VII proceedings ' ensuring the integrity of the proceedings and encouraging testimony ' be served by insulating conduct that occurs before the proceedings begin. Id.

Although the participation clause is not the subject of as much litigation as the opposition clause of Title VII, and despite the lack of a reasonableness filter imposed on participation activity, employers can nonetheless succeed in challenging retaliation claims that invoke the participation clause by scrutinizing an employee's threshold claim that it is the participation clause that applies. Very often, the employee's conduct would be characterized more accurately as opposition activity, and does not meet the standards for the opposition clause.

Conclusion

With employees filing retaliation claims at an accelerated rate, and with certain aspects of the retaliation claim's proof ' especially the adverse action element ' becoming more difficult to defeat, employers should analyze the “protected activity” element with renewed vigor, to ensure that they are not neglecting arguments that might just win the case.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors and co-chair of the Day Pitney's Labor and Employment Department, is a trial lawyer whose practice centers on the defense of workplace and employment claims. She has significant trial experience, representing clients across New England in state and federal court and in arbitration.

Part One of this article, which appeared in the June issue of Employment Law Strategist, discussed proof of retaliation claims. The conclusion herein addresses what conduct is protected.

Protected Activity

What is the “protected activity” that forms an essential predicate for any claim of retaliation under Title VII? It is either the making of a complaint of discrimination, i.e., opposition to statutorily prohibited conduct, or the participation in the complaint-related proceedings or investigation. 42 U.S.C. ' 2000e-3(a).

Opposition

To engage in opposition to prohibited conduct, an employee must complain about an employment practice that is prohibited by Title VII. Filing a complaint of discrimination either with the employer or with the Equal Employment Opportunity Commission or local counterpart is the archetypal means of opposing prohibited conduct. The opposition activity need not take the form of a formal complaint, however, or even a complaint that specifically invokes Title VII. See, e.g., Sumner v. United States Postal Serv. , 899 F.2d 203, 209 (2d Cir. 1990) (seminal case holding that Title VII's opposition clause protects formal and informal complaints of discrimination, as well as complaints in other forms). The complaint must, however, indicate in some way that the challenged conduct is believed to be discriminatory; simply alleging that certain conduct is unfair, harassing, or wrong is not enough. See, e.g., Curay-Cramer v. Ursuline Acad. , 450 F.3d 130, 135 (3d Cir. 2006) (“general complaint of unfair treatment is insufficient to establish protected activity under Title VII”); Crosby v. City of Walterboro , 444 F. Supp. 559 (D.S.C. 2006) (finding no protected activity where plaintiff commented that another employee's description of incident sounded like it could be sexual harassment but he did not know); but see Hashimoto v. Dalton , 118 F.3d 671, 679-80 (9th Cir. 1997) (employee's meeting with EEO counselor to discuss employment concerns was protected activity, despite employee's statement at end of meeting that she did not believe there was discrimination).

Even where a plaintiff expressly and affirmatively supports a group of employees who are in a classification protected by Title VII, such as women or racial minorities, courts generally find that such activity does not constitute protected opposition activity, in the absence of any reasonable notice that the plaintiff was thereby challenging conduct believed to be discriminatory. See, e.g., Burch v. Regents of Univ. of Cal. , 433 F. Supp. 2d 1110, 1126-27 (E.D. Cal. 2006) (where athletic coach advocated establishment of women's sports team, court found no protected opposition activity, because coach did not say or indicate that gender was the issue).

Similarly, the mantle of protected opposition activity will not extend to unreasonably hostile or disruptive activity in the workplace, even if such activity concerns an allegation of discriminatory conduct. See, e.g., Hertz v. Luzenac Am. , Inc., 370 F.3d 1014, 1021-22 (10th Cir. 2004) (holding that opposition activity will be protected by Title VII if it reflects emotional reaction to the allegedly discriminatory act, so long as the employee's “emotional outburst” is not unchecked). A few courts have considered whether physical violence in reaction to conduct that violates Title VII can properly be deemed protected opposition conduct and have concluded that it might, if the physical violence was reasonable under all the circumstances. See, e.g., Cruz v. Coach Stores, Inc. , 202 F.3d 560, 566-67 (2d Cir. 2000) (plaintiff's slap of her alleged harasser not protected activity where she had several other, more reasonable options for resisting offensive behavior).

Moreover, the employer must be responsible for the challenged conduct; if the alleged protected activity, for example, is simply a complaint about a coworker's conduct, for which the employer would not be liable, the complaint itself should not be considered protected opposition activity. See, e.g., Bruton v. Gainesville Hotel Mgmt., LLC, 2007 U.S. Dist. LEXIS 51851 (N.D. Fla. July 18, 2007) (plaintiff must establish that employer is responsible for alleged discriminatory conduct in order for complaint about such conduct to be protected activity under Title VII). This principle would apply, for example, in a case where the court dismisses the claim of coworker sexual harassment on the ground that the plaintiff never complained within the employer's established channels about such conduct; the court could then hold, accordingly, that, in the absence of any basis for imposing liability on the employer for the coworker's allegedly harassing conduct, the retaliation claim, too, must be dismissed for lack of any actual opposition activity. See, e.g., Bernier v. Morningstar, Inc., 2006 U.S. Dist. LEXIS 3958 (N.D. Ill. Jan. 31, 2006).

Finally, opposition conduct is protected under Title VII only if it is undertaken in “good faith” and if the employee subjectively believes that the employment action is illegal. See, e.g., Clark County v. Breeden , 532 U.S. 268, 270-71 (2001) ( per curiam ) (assuming, without deciding, that opposition must be undertaken with good-faith belief that an employer's conduct violates Title VII, and, here, deciding that no reasonable fact finder could conclude that the employer's conduct was in fact serious or pervasive enough to constitute hostile work environment).

Plaintiffs rightfully seek the protection of Title VII when they make complaints about conduct that might reasonably be considered to violate the statute. In the same vein, employers can and should seek to make all available arguments to defeat retaliation claims predicated on such complaints ' including that: 1) the complaint fails to allege a violation of Title VII or put the employer on notice that the employee is claiming discrimination; 2) the complaint is unduly vague or focuses only on unfairness or perceived wrongs, without connection to discrimination; 3) the employee's conduct was unreasonably disruptive or physically violent; 4) the complaint addressed conduct for which the employer was not responsible and could not be liable; 5) the employee did not make the complaint in good faith; and 6) the employee did not subjectively believe that the challenged conduct was harassing or otherwise discriminatory.

Participation

In addition to opposition conduct, protected activity includes participation in the investigation of any Title VII complaint, whether that investigation is conducted internally at the employer or externally by the Equal Employment Opportunity Commission (EEOC) or state EEO agency. Courts have frequently recognized that the “participation clause” of Title VII is broader than the “opposition clause”; the basis of this distinction is that participation in any form ' even making defamatory statements, or statements that are simply wrong, to an EEO agency ' is absolutely protected, whereas opposition activity is protected only when it is reasonable, as discussed above. See, e.g., Laughlin v. Metro. Wash. Airports Auth. , 149 F.3d 253, 259 (4th Cir. 1998); Rollins v. Florida Dep't of Law Enforcement , 868 F.2d 397, 400 (11th Cir. 1989).

Indeed, courts have generally held that a reasonableness standard should not be applied to the participatory conduct that forms the basis of the Title VII retaliation claim. For example, in Glover v. South Carolina Law Enforcement Div. , 170 F.3d 411, 413-14 (4th Cir. 1999), the court expressly declined to hold that an employee's conduct could be protected participation only if that conduct is reasonable; rather, the court held that, in light of Title VII's express language, “all testimony in a Title VII proceeding is protected against punitive employer action.” See also Sanders v. Madison Square Garden, L.P., 2007 U.S. Dist. LEXIS 57319 (S.D.N.Y. Aug. 6, 2007) (same, citing Deravin v. Kerik , 335 F.3d 195, 203-04 (2d Cir. 2003)).

Moreover, courts have refused to permit plaintiffs to avoid imposition of the reasonableness standard by simply characterizing their conduct as “participation” rather than “opposition.” In Sanders, for example, the plaintiff argued that her activities in gathering information to file a lawsuit alleging Title VII violations were participation, not opposition, because protected participation need not occur only in the context of a formal Title VII proceeding. The Sanders court resoundingly dismissed this argument, because, at the time of the alleged participation, plaintiff had not yet filed a Title VII complaint, and it would be impossible to participate in Title VII proceedings before a Title VII complaint is even filed. Sanders, 2007 U.S. Dist. LEXIS 57319, at *53-59. Nor, the court held, would the salutary purposes of the broad protection of participation in Title VII proceedings ' ensuring the integrity of the proceedings and encouraging testimony ' be served by insulating conduct that occurs before the proceedings begin. Id.

Although the participation clause is not the subject of as much litigation as the opposition clause of Title VII, and despite the lack of a reasonableness filter imposed on participation activity, employers can nonetheless succeed in challenging retaliation claims that invoke the participation clause by scrutinizing an employee's threshold claim that it is the participation clause that applies. Very often, the employee's conduct would be characterized more accurately as opposition activity, and does not meet the standards for the opposition clause.

Conclusion

With employees filing retaliation claims at an accelerated rate, and with certain aspects of the retaliation claim's proof ' especially the adverse action element ' becoming more difficult to defeat, employers should analyze the “protected activity” element with renewed vigor, to ensure that they are not neglecting arguments that might just win the case.

Victoria Woodin Chavey, a member of this newsletter's Board of Editors and co-chair of the Day Pitney's Labor and Employment Department, is a trial lawyer whose practice centers on the defense of workplace and employment claims. She has significant trial experience, representing clients across New England in state and federal court and in arbitration.