The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.

Background

In EEOC v. Rite Way Service, Inc. (5th Cir. April 8, 2016), the plaintiff witnessed a supervisor, “make two sexually-fraught and unwelcome comments” to her co-worker “within the span of a week.” After the co-worker complained about the supervisor’s behavior, Rite Way interviewed the plaintiff during its investigation, and then, five weeks later, Rite Way terminated the plaintiff for poor job performance.

The EEOC sued Rite Way for allegedly retaliating against the plaintiff for “opposing” discrimination. The district court granted summary judgment for Rite Way, holding that the plaintiff did not engage in “protected activity” under Title VII because she could not have “reasonably believed” the supervisor’s conduct towards the plaintiff’s co-worker was sufficiently severe or pervasive to rise to the level of a Title VII violation.

The Fifth Circuit Confirms the Reasonable Belief Standard

On appeal the EEOC argued that retaliation claims of “reactive” third party witnesses, who merely provide information in response to an employer’s questions, should not be subject to the same “reasonable belief” standard as retaliation claims of “proactive” witnesses who affirmatively complain. According to the EEOC, reactive witnesses are at an “information disadvantage” when it comes to establishing a reasonable belief that a violation has occurred because they may not know if they have witnessed “the entirety of the harassing behavior, or only a snippet.”

The Fifth Circuit disagreed, explaining that “creating a lower threshold for reactive plaintiffs bringing retaliation claims would be at odds with [Supreme Court precedent] reasoning that the language of [Title VII’s] opposition clause does not permit courts to treat reactive opposition any differently than proactive opposition.” Moreover, the court explained that “the reasonable belief standard is itself … a compromise position struck by courts to avoid too parsimonious a grant of protection under the opposition clause yet still maintain a connection between what the plaintiff is ‘opposing’ and the discriminatory conduct Title VII forbids.” Nevertheless, while the Fifth Circuit agreed with the trial court’s application of the reasonable belief standard, it reversed summary judgment for Rite Way, finding that the conduct the plaintiff observed was sufficient to provide her with a reasonable belief that unlawful harassment had occurred.

Takeaway

Although the EEOC’s arguments for applying a more liberal standard to retaliation plaintiffs who provide information reactively were not particularly compelling, the case may be part of a greater push to pursue litigation that will broaden the scope of retaliation protections for employees, particularly in view of the EEOC’s recent proposed guidance on the subject. Employers should thus be on the lookout for EEOC efforts to expand protections on every element of retaliation claims – including determining which individuals are entitled to protection from retaliation, what constitutes protected activity and what qualifies as an adverse employment action.