Complaint to Harasser Constitutes Protected Activity for Title VII Retaliation Claim: Sixth Circuit

Practical Law Legal Update 5-610-0005 (Approx. 5 pages)

Complaint to Harasser Constitutes Protected Activity for Title VII Retaliation Claim: Sixth Circuit

by Practical Law Labor & Employment

Background

New Breed Logistics was a supply chain logistics company in Memphis, Tennessee. James Calhoun was a supervisor in New Breed's receiving department. Among others, he supervised female employees Tiffany Pete, Jacquelyn Hines and Capricius Pearson and male employee Christopher Partee. On multiple occasions, Calhoun made sexually explicit comments to the three female employees (and inappropriately touched at least one of them). Partee witnessed Calhoun's sexually inappropriate conduct. The three female employees repeatedly asked Calhoun to stop, and Pete complained anonymously about Calhoun on New Breed's telephone complaint line, although Calhoun found out about Pete's anonymous call. Partee told Calhoun to stop his inappropriate conduct toward the three female employees. Ultimately, New Breed terminated Pete, Hines, Pearson and Partee within several weeks of one another. Calhoun had either a direct or indirect role in each termination decision.

The EEOC sued New Breed in US District Court on behalf of the four employees. The suit alleged sexual harassment and retaliation for the three female employees and retaliation for Partee. A jury found New Breed liable on each claim and awarded the four employees a total of over $1.5 million in compensatory and punitive damages. New Breed filed post-trial motions for a new trial and judgment as a matter of law, claiming the evidence was insufficient to warrant the verdict (particularly on the retaliation claim) and that the jury instructions were erroneous. The district court denied New Breed's motions and New Breed appealed to the Sixth Circuit.

Outcome

The Sixth Circuit affirmed the district court's denial of New Breed's motions and rejected New Breed's argument that the four employees had not engaged in protected activity to support the retaliation claim. As a matter of first impression in the circuit, the court held that an employee's demand to a harassing supervisor that the supervisor cease his harassing conduct constitutes protected activity under Title VII's anti-retaliation provision (42 U.S.C. § 2000e-3(a)). The Sixth Circuit noted that:

Two district courts had previously reached the same conclusion (Berthiaume v. Appalachian Christian Vill. Found., Inc., No. 2:07-cv-46, (E.D. Tenn. Sept. 4, 2008); Reed v. Cracker Barrel Old Country Store, Inc., 133 F. Supp. 2d 1055 (M.D. Tenn. 2000)).
The anti-retaliation provision's use of the term "opposing" any unlawful employment practice suggests that protected activity does not only apply to formal EEOC charges filed by employees but also to less formal internal complaints made by employees about discriminatory employment practices (Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014)).
The EEOC's long-held position is that "opposing" unlawful employment practices includes complaining to management as well as to other employees, and the court had previously deferred to the EEOC's expansive understanding of Title VII's anti-retaliation provision (Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000)).
The language of the anti-retaliation provision does not specify to whom protected activity must be directed (Warren v. Ohio Dept. of Public Safety, 24 F. App’x 259 (6th Cir. 2001)).
Only one circuit has held that demanding a supervisor stop his harassment was not protected activity, but in that decision, the court did not examine the anti-retaliation provision's language (Frank v. Harris County, 118 F. App’x 799 (5th Cir. 2004)).

The Sixth Circuit rejected New Breed's remaining arguments against the verdict on the retaliation claim, finding that:

New Breed had knowledge that the four employees:
- engaged in protected activity; and
- were subjected to adverse actions as a result of that protected activity.
A jury could reasonably infer that the employees' protected activity was the but-for cause of their terminations because:
- they were terminated close in time to their complaints to Calhoun about his harassment; and
- New Breed's legitimate, non-discriminatory reasons for terminating the four employees could reasonably be dismissed as pretextual.
The court rejected New Breed's contention that the jury instructions on the retaliation claim were erroneous, and similarly rejected the remainder of New Breed's arguments to set aside the jury's verdict. The court affirmed the district court's decision and denied New Breed a new trial.

Practical Implications

The Sixth Circuit's decision in New Breed takes an expansive view of what constitutes protected activity to support a Title VII retaliation claim. Employers within the circuit must be aware that demands made to a harassing supervisor that he cease his harassing conduct can suffice as protected activity. This places additional onus on employers to be aware of what is taking place within their workplace, including within individual departments and sub-departments. Employers should implement written anti-harassment policies designed to ensure that management will become aware of harassment situations involving supervisors, including by:

Requiring that supervisors report to management employee complaints made to the supervisors about their own conduct.
Instituting multiple avenues for complaining so that employees do not limit their complaint solely to the harassing supervisor.

For a model anti-harassment and anti-retaliation policies, see Standard Documents, Anti-harassment Policy and Anti-retaliation Policy.

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