Protected Title VII Conduct Can Be As Simple As Telling Your Boss to Stop Harassing You

The Sixth Circuit recently ruled “a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII,” so that employees who tell a boss to stop harassing them are protected from retaliation. E.E.O.C. v. New Breed Logistics, 2015 WL 1811018 (6th Cir. Apr. 22, 2015). In so doing, the court affirmed a $1.5 million jury award for four temporary employees provided by a staffing company who were terminated after they told the supervisor at their worksite to stop making sexual comments.

Title VII provides that it shall be unlawful to discriminate against an employee because the employee “opposed any practice made an unlawful employment practice.” The company argued that simply resisting a harasser’s advances or talking back to a harasser did not meet this standard, but the court disagreed.

The plaintiffs, three female employees and a male co-worker, who were supplied by a temporary staffing agency, worked at a supply-chain logistics company. Their worksite supervisor made sexually-suggestive comments to each of the three female employees on a daily basis and sometimes engaged in physical contact with one of them. Each of the three female employees opposed the misconduct, telling the supervisor to “stop touching [her],” “stop talking dirty to [her]” and to “leave [her] alone.” The male co-worker overheard the sexual comments and told the supervisor to “calm down on making [ ] comments.” Notably, while the company distributed a handbook with a sexual harassment policy to regular employees, it did not provide the handbook to temporary employees.

Shortly after objecting to the harassment, the company warned one of female employees about her attendance and terminated her a week later. When the supervisor learned that the other two female employees intended to make an anonymous complaint against him through a hotline, he told upper management that they were not good workers and recommended terminating their employment based on performance. The company subsequently terminated the two remaining female employees. Finally, shortly after the company interviewed the male co-worker regarding the supervisor’s alleged harassment, the company terminated him on the grounds that he was clocking in early and staying late without authorization.

The employees filed a charge with the EEOC alleging harassment and retaliation in violation of Title VII. A jury found in favor of the employees and the company appealed. The company did not dispute the harassment finding, but argued that there was no evidence that the employees had engaged in any protected conduct or that they were terminated in retaliation for such conduct.

The Sixth Circuit rejected the company’s argument and upheld the jury verdict. The court reasoned that since sexual harassment is an unlawful employment practice, “[i]f an employee demands that his/her supervisor stop engaging in this unlawful practice – i.e., resists or confronts that 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.’”

The employer also argued that there was no evidence that the decision-makers who terminated the employees’ employment knew that the employees had confronted their supervisor when the decision-makers decided to terminate them. The court, however, held that the EEOC had presented sufficient evidence for the jury to find that the supervisor was the driving force behind the decision-makers’ actions under the so-called cat’s paw theory.

Finally, the court ruled that the temporal proximity between the protected conduct and the terminations was sufficient to support the jury’s decision that the company terminated them because of their protected conduct.

The New Breed case will make it easier for employees to establish claims for retaliation. To help avoid such claims, employers should be certain that all workers are familiar with and encouraged to use an established complaint process, which should include several avenues of communication. The New Breed case also demonstrates the need for those who make termination decisions to be certain that they are aware of all of the facts, including the potential bias of those reporting the misbehavior. Indeed, supervisors who report misconduct should be questioned as to whether the employee has engaged in any activity that could be considered protected conduct so that management can make a fully informed decision.