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Telling Harasser to Stop Conduct Protects Employee from Retaliation

    Client Alerts
  • May 15, 2015
Title VII and related federal civil rights laws prohibit employers from retaliating against an employee who files a claim, participates in an investigation or opposes conduct prohibited under anti-discrimination laws. Typically, an employee alleges that she complained to a third party (i.e., HR, another supervisor) and subsequently suffered some adverse employment consequence. What happens, however, when the basis for the retaliation claim is the employee’s opposition to harassment directly expressed to the alleged harasser?

In EEOC v. New Breed Logistics, the EEOC sued, claiming that a supervisor sexually harassed three female employees, and then retaliated against them based on their complaints to him about his behavior, by recommending their termination to his superiors. After trial, the jury awarded the employees $1.5 million in damages based on their harassment and retaliation claims. On appeal, the employer asked the Sixth Circuit Court of Appeals to overturn the retaliation verdict on the basis that in order to gain protection under Title VII’s anti-retaliation provisions, the plaintiffs’ opposition to the harassing conduct must involve something more than telling the harasser to stop.

The Sixth Circuit disagreed, affirming the jury verdict. The court rejected the employer’s contention that opposition must involve some form of notice to the employer of the harassing conduct. Instead, the Sixth Circuit adopted a plain language reading of the statute, defining opposition to the supervisor’s conduct as opposition for the purpose of protection against later retaliation. Title VII does not identify to whom the complaints must be made before employees gain the law’s protections. Even though the managers who actually terminated the plaintiffs were not aware of their complaints, the harassing supervisor influenced these decisions under the “cat’s paw” theory of liability.

This decision reflects a long-standing trend of federal courts defining anti-retaliation laws as expansively as possible. If a supervisor engages in discriminatory or harassing conduct, and if employees are punished as a result of their complaining about the behavior, the avenues or methods used to complain, and the employer’s lack of knowledge of the complaints or conduct will not prevent liability judgments.