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Third-Party Opposition Requires Reasonable Belief that Conduct Violates Title VII: Fifth Circuit
Practical Law Legal Update w-001-8855 (Approx. 4 pages)
Third-Party Opposition Requires Reasonable Belief that Conduct Violates Title VII: Fifth Circuit
by Practical Law Labor & Employment
| Published on 18 Apr 2016 • USA (National/Federal) |
In EEOC v. Rite Way Service, Inc., the US Court of Appeals for the Fifth Circuit held that an employee who was terminated soon after reporting to her employer harassing conduct she witnessed against another employee must show that she had a reasonable belief that the discrimination she reported violated Title VII of the Civil Rights Act of 1964 (Title VII).
On April 8, 2016, in EEOC v. Rite Way Service, Inc., the US Court of Appeals for the Fifth Circuit held that an employee who was terminated soon after reporting to her employer harassing conduct she witnessed against another employee (known as reactive opposition) must show that she had a reasonable belief that the discrimination she reported violated Title VII, and she need not show that the reported discrimination actually violated Title VII. The court also held that isolated comments or conduct can be sufficient to support the employee's reasonable belief that the reported discrimination violated Title VII and that the context of the employee's report is a key factor in assessing whether the employee had a reasonable belief. ( (5th Cir. Apr. 8, 2016).)
Background
Mekeva Tennort worked as a general cleaner for Rite Way, a janitorial services contractor. In August 2011, Tennort witnessed two separate incidents in which her interim supervisor, Willie Harris, engaged in inappropriate conduct with another general cleaner, Linda Quarles. After the second incident, Quarles complained that Harris had sexually harassed her and identified Tennort as a witness. Rite Way investigated Quarles's complaint and a Rite Way project manager questioned Tennort about the second incident. During the questioning, the project manager tried to dissuade Tennort from reporting what she had seen. Tennort wrote a written report of what she had witnessed.
Over the next few weeks, Tennort received multiple written and verbal warnings about her job performance. In two years of employment with Rite Way prior to that time, Tennort had not been disciplined at all. On September 26, 2011, Rite Way issued Tennort a third written warning and terminated her employment
The EEOC brought a retaliation claim in US district court on Tennort's behalf, claiming that Rite Way terminated Tennort's employment in retaliation for corroborating the second incident between Harris and Quarles. The district court granted summary judgment to Rite Way, finding that Tennort did not engage in protected conduct under Title VII's anti-retaliation provision because she could not have reasonably believed that Harris's conduct violated Title VII.
Outcome
The Fifth Circuit reversed the district court's grant of summary judgment to Rite Way and remanded, holding that:
- An employee who engages in "reactive opposition" under the opposition clause of Title VII's anti-retaliation provision by reporting discrimination against other employees must only have a reasonable belief that the discrimination she reported violates Title VII in order to sustain a retaliation claim. The employee need not show that the reported discrimination actually violated Title VII.
- Tennort engaged in protected "reactive opposition" by filing the report about the second incident between Harris and Quarles. Tennort had a reasonable belief that the conduct she reported to Rite Way violated Title VII.
- Isolated comments can serve as a basis for an employee's reasonable belief that a Title VII violation occurred.
- The context of the employee's report is a key factor in assessing whether the employee had a reasonable belief.
The Fifth Circuit noted that:
- The opposition clause of Title VII's anti-retaliation provision prohibits employers from retaliating against employees for opposing any practice that is unlawful under Title VII. The clause also protects employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the statute (the participation clause). (42 U.S.C. § 2000e-3(a).)
- Complaints solicited by an employer (as distinguished from complaints initiated by a plaintiff employee) can constitute protected opposition under the opposition clause (Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 555 U.S. 271, 277-78 (2009)).
- One Fifth Circuit opinion asserted that requiring a showing that an employee reasonably believed that an employment practice was unlawful (as opposed to requiring the employee to establish that the practice complained of was actually unlawful) is consistent with the opposition clause and with Title VII's policy goals (Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. Unit A Sept. 1981)).
- Another Fifth Circuit opinion asserted that the reasonable belief standard in Payne was "in tension" with the opposition clause's plain text (Royal v. CCC & R Tres Arboles, LLC, 736 F.3d 396, 401 n.2 (5th Cir. 2013)).
- The Supreme Court has not addressed the reasonable belief standard (see Clark County School District v. Breeden, 532 U.S. 268, 270 (2001) (per curiam)).
- The Fifth Circuit's decision in Payne:
- remains good law; and
- accords with the law of every other circuit court.
The Fifth Circuit found that Tennort had a reasonable belief that the conduct she reported to Rite Way violated Title VII because:
- The comment Tennort reported:
- was directed at a specific employee (Quarles); and
- came from a supervisor.
- The context in which Tennort reported the comment suggested she could have reasonably believed that it violated Title VII, including the fact that:
- Tennort received a pamphlet from Rite Way shortly before she witnessed Harris's conduct; and
- Rite Way's manager interviewed Tennort and strongly suggested that Rite Way would prefer she not corroborate Quarles's sexual harassment complaint.
Practical Implications
The Fifth Circuit's decision in Rite Way joins other circuits in holding that an employee who engages in reactive opposition under the opposition clause of Title VII's anti-retaliation provision must only have a reasonable belief that the discrimination she reported violates Title VII in order to sustain a retaliation claim. The employee need not show that the reported discrimination actually violated Title VII. This reasonable belief standard is less onerous for employees to meet. Employers in the Fifth Circuit should be aware that the law on this issue is clear and should avoid taking retaliatory actions against employees who report discriminatory or harassing conduct against other employees, including conduct that involves isolated comments.